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NOMINATION OF ROBERT H. BORK TO BE 
ASSOCIATE JUSTICE OF THE SUPREME COURT 
OF THE UNITED STATES 


HEARINGS 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

ONE HUNDREDTH CONGRESS 

FIRST SESSION 
ON 

THE NOMINATION OF ROBERT H. BORK TO BE ASSOCIATE JUSTICE OF 
THE SUPREME COURT OF THE UNITED STATES 

SEPTEMBER IB, 10, 17, 18. 19, 21, 22, 23, 

25, 28, 29, AND 30. 1987 

Part 3 of 5 Parts 

Serial No. J-l 00-64 

Printed for the of the Committee on the Judiciary 



UJ. OOVBUNKINT PRINTINO omCI 
M-87* WASHINGTON IMS 


Fur Hi* by ih* Bup*rla1*iul*nt at Decuman a, U.6. Ocvammant PrlnUn* Office 

WHUaftcn, DO *0401 


88-374 O-09-1 






COMMITTEE ON THE JUDICIARY 

JOSEPH R. BIDEN, Jr., Delaware, Chairman 
EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina 
ROBERT C. BYRD, West Virginia ORRIN G. HATCH, Utah 

HOWARD M. METZENBAUM, Ohio ALAN K. SIMPSON, Wyoming 

DENNIS DeOONCINI, Arizona CHARLES E. GRASSLEY, Iowa 

PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania 

HOWELL HEFLIN, Alabama GORDON J. HUMPHREY, New Hampshire 

PAUL SIMON, Illinois 

Mark H, Gitenstein, Chief Counsel 
Diana Huffman, Staff Director 
Dennis W. Shedd, Minority Chief Counsel 
R J. Duke Short, Minority Chief Investigator 
Jeffrey J. Peck, Special Counsel 
Daria Pomeroy, Staff Assistant 


(II) 



CONTENTS 


Page 

Hearing Date*. iv 

Chronological List of Witnesses, Questioning and Material! Submitted... rv 

Poet-Hearing Correspondence Between Judge Bork and the Committee. xxi, 3896 

Additional Submissions for the Reoord.... xxn, 3969 

Alphabetical Index of Witnesses, Questioning and Materials Submitted for 
the Record.xxvm 

Appendix: Report of the Committee....,......... 6180 

Witness List. 6601 

(in) 









HEARING DATES 


Page 

Tuesday, September 15, 1987. 1 

Wednesday, September 16, 1987. 193 

Thursday, September 17, 1987. 319 

Friday, September 18, 1987. 445 

Saturday, September 19, 1987. 795 

Monday, September 21, 1987. 865 

Tuesday, September 22, 1987. 1263 

Wednesday, September 23, 1987. 2095 

Friday, September 25, 1987. 2241 

Monday, September 28, 1987 . 2759 

Tuesday, September 29, 1987 . 3023 

Wednesday, September 30, 1987. 3349 

CHRONOLOGICAL LIST OF WITNESSES, QUESTIONING AND 
MATERIALS SUBMITTED 

Tuesday, September 15, 1987 

Presenters 

Ford, Honorable Gerald R., former President of the United States. 3 

Questioning by Senator DeConcini. 11 

Dole, Honorable Bob, United States Senator from the State of Kansas. 12 

Danforth, Honorable John C., United States Senator from the State of Mis¬ 
souri. 17 

Fish, Honorable Hamilton, Jr., Representative in Congress from the State of 
New York. 21 

Opening Statements of Committee Members 

Biden, Honorable Joseph R., Jr. 94 

Thurmond, Honorable Strom. 29 

Kennedy, Honorable Edward M. 32 

Hatch, Honorable Orrin G. 35 

Metzenbaum, Honorable Howard M. 44 

Simpson, Honorable Alan K. 47 

DeConcini, Honorable Dennis. 51 

Grassley, Honorable Charles E. 59 

Leahy, Honorable Patrick J. 66 

Specter, Honorable Arlen. 75 

Heflin, Honorable Howell T. 77 

Humphrey, Honorable Gordon J. 85 

Simon, Honorable Paul. 92 

Byrd, Honorable Robert C. 121 

Witness 

Bork, Robert H., United States Circuit Court Judge for the District of Colum¬ 
bia Circuit, to be Associate Justice of the Supreme Court of the United 

States. 103 

Opening Statement. 103 

Questioning by: 

Chairman Biden. 112, 127 


(IV) 





































V 


Pane 

Senator Byrd. 126 

Senator Thurmond.. 128 

Senator Kennedy. 149 

Senator Hatch... 176 

Prepared Statements 

Ford, Honorable Gerald R... 6 

Dole, Honorable Bob. 14 

Danforth, Honorable John C. 19 

Fish, Honorable Hamilton, Jr. 24 

Hatch, Honorable Orrin G. 39 

Metzenbaum, Honorable Howard. 45 

DeConcini, Honorable Dennis.... 54 

Grassley, Honorable Charles E .... 63 

Leahy, Honorable Patrick J..... 70 

Heflin, Honorable Howell T....... 80 

Humphrey, Honorable Gordon J. 89 

Biden, Honorable Joseph R., Jr... 99 

Bork, Judge Robert H. 106 

Materials Submitted for the Record 

Letter from Judge James F. Gordon to Chairman Biden, August 24, 1987. 136 

Memorandum from Judge Bork to Judge Roger Robb, October 1,1982. 139 

Memorandum from Judge Robb to Judges Bork and Gordon, October 6,1982... 140 

Memorandum from Judge Bork to Judges Robb and Gordon, October 8, 1982... 141 

Letter from Judge Gordon to Judge Bork, December 17, 1982. 143 

Memorandum from Judge Robb to Judges Bork and Gordon, March 19,1982... 144 

Memorandum from Judge Bork to Judges Robb and Gordon, September 17, 

1982. 145 

Letter from Judge Bork to Judge Gordon, September 24,1982... 146 

Speech by Robert Bork at the Mayflower Hotel, May 1974. 163 

Memorandum from Robert Bork to the Attorney General regarding pocket 
vetoes, January 26,1976. 177 

Wednesday, September IS, 1987 

Witness 

Bork, Robert H., United States Circuit Court Judge for the District of Colum¬ 
bia Circuit. 193 

Questioning by: 


Chairman Biden. 232, 241, 268, 264 

Senator Kennedy. 235 

Senator Simpson. 236, 242 

Senator DeConcini. 248 

Senator Grassley. 269, 264 

Senator Leahy. 267 

Senator Specter. 277 

Senator Heflin... 288 

Senator Humphrey. 296 

Senator Simon. 307 

Materials Submitted for the Record 

Memorandum from Alexander M. Haig, Jr. to President Nixon, August 2, 

Ijyyg .. . . . ... . ....... 198 

Letter from Robert Bork to Alexander Haig, July 81, 1973... 199 

Letter from Charles L. Black, Jr. to The New York Times, July 25, 1978. 200 

Memorandum from Patrick Buchanan to Alexander Haig, August 3, 1973, 
with copy of Charles L. Black, Jr., "Mr. Nixon, the Tapes, and Common 

Sense,” The New York Times, undated. 202 

Memorandum from Alexander Haig to President Nixon, August 8, 1973. 204 

Excerpt from the Congressional Record, August 1, 1973, with letter from 

Charles L. Black, Jr. to Congressman Bob Eckhardt, July 30, 1973. 205 

Letter from Robert Bork to Alexander Haig, August 3, 1973, and Congression¬ 
al Record excerpt, August 1,1973..... 212 














































VI 


Letter from Robert Bork to Leonard Garment, August 3, 1973. 215 

Telephone Memorandum, The White House, August 3, 1973. 216 

Letter from Senator Kennedy to Robert Bork, November 16, 1973. 218 

Letter from Robert Bork to Senator Kennedy, undated. 223 

Newspaper article by Lloyd N. Cutler, “Judge Bork: Well Within the Main¬ 
stream,” The Washington Post, September 16, 1987. 247 

Letter from Warren I. Cikins to The Washington Post, July 28, 1987. 310 

Letter to the editor from Joshua O. Haberman, The Washington Post, August 
6, 1987. 311 

Thursday, September 17, 1987 

Witness 

Bork, Robert H., United States Circuit Court Judge for the District of Colum¬ 
bia Circuit. 319 

Questioning by: 

Chairman Biden. 319, 405 

Senator Thurmond. 329 

Senator Kennedy. 336 

Senator Hatch. 345 

Senator Metzenbaum. 360 

Senator Simpson. 380 

Senator DeConcini. 391 

Senator Grassley. 400, 406 

Senator Leahy. 416, 427 

Senator Humphrey. 426, 427 

Senator Specter. 427 

Senator Simon. 438 


Materials Submitted for the Record 


List of “Supreme Court Briefs Where Solicitor General Bork Supported the 

Rights of Minorities,’! submitted by Judge Bork. 354 

List of “Supreme Court Briefs Where Solicitor General Bork Supported the 

Rights of Women,” submitted by Judge Bork. 357 

Compilation of “Bork on Bork—The World According to Robert Bork,” pre¬ 
pared by Senator Kennedy, September 17, 1987. 370 

Letter from James T. Halverson and other previous chairmen of the Section 
of Antitrust Law of the American Bar Association to The Washingon Post, 

August 7, 1987. 388 

List of “100 Selected Law Professors Favoring the Confirmation of Robert H, 

Bork as an Associate Justice of the United States Supreme Court”. 408 


Friday, September 18, 1987 


Witness 

Bork, Robert H., United States Circuit Court Judge for the District of Colum¬ 
bia Circuit. 445 

Questioning by: 

Senator Heflin. 445 

Chairman Biden. 452, 593, 642, 664, 676, 679, 696 

Senator Humphrey. 453, 736 

Senator Thurmond. 464 

Senator Metzenbaum. 467, 678 

Senator Hatch. 471, 594, 643 

Senator Kennedy. 646, 666 

Senator Simpson. 669, 677 

Senator DeConcini. 676, 722 

Senator Byrd. 679 

Senator Grassley. 689 

Senator Specter. 713 

Senator Leahy. 746 


Materials Submitted for the Record 

Newspaper article by Stuart A. Smith, “Bork Deserves to be a Justice,” The 
Neiv York Times, September 16, 1987. 


455 











































VII 


List of “Substantive Pro-Minority and Pro-Women Appellate Court Decisions pa,!e 

by Judge Bork,” prepared by Senator Hatch, with copies of decisions. 472 

List of “Supreme Court Briefs Where Solicitor General Bork Supported the 

Rights of Women,” submitted by Senator Hatch.... 583 

List of “Supreme Court BriefB Where Solicitor General Bork Supported the 

Rights of Minorities,” submitted by Senator Hatch. 584 

Transcript of Department of Justice “Press Conference of Honorable Robert 
H. Boric, Acting Attorney General of the United States,” with attachments. 


Newspaper article, "Senate Democrats Ask Independent Special Prosecutor,” 

The Washington Post, October 24,1973. 632 

Newspaper article, “Nixon Plan on Prosecutor is Opposed by Mansfield,” The 

New York Times, October 28,1973... 634 

Newspaper article, “Nixon and Bork Reported Split on Prosecutor’s Role,” 

The New York Times, October 29, 1973. 636 

Newspaper article, “A Retraction on Bork,” The Washington Post, November 


........... WO 

Excerpt from Stonewall. The Real Story of the Watergate Prosecution, by 
Richard Ben-Veniste and George Frampton, Jr. (Simon and Schuster 1977)... 639 

Article by Robert Bork, “The Struggle Over the Role of the Court,” National 

Review, September 17, 1982. 650 

Speech by Robert Bork, “The Crisis in Constitutional Theory: Back to the 

Future,” The Philadelphia Society, April 3,1987... 653 

Letter from Paul Marcus to Senator DeConcini, September 17, 1987. 725 

Newspaper article, "UA’s Dean Marcus Calls for Bork’s Confirmation,” Arizo¬ 
na Daily Star, August 29, 1987... 726 

Compilation of "Statistics Concerning Judge Bork’s Record on Appeal In 
Cases Where He Wrote or Joined the Mfqority Opinion,” prepared by 

Senator Humphrey. 737 

Compilation of “Statistics Concerning Subsequent History with Respect to 

Judge Bork’s Dissenting Opinions,” prepared by Senator Humphrey. 740 

Passage from the 1967 hearing on the nomination of Justice Thurgood Mar¬ 
shall, submitted by Senator Humphrey. 744 

Letter from Judge Bork to Chairman Biden regarding Vander Jagt v. O’Neill, 

October 1, 1987. 756 

Memorandum from Judge Robb to Judges Bork and Gordon, March 19, 1982... 761 

Memorandum from Judge Bork to Judges Robb and Gordon, September 17, 

1982. 762 

Letter from Judge Bork to Judge Gordon, September 24,1982 . 763 

Memorandum from Judge Bork to Judge Robb, October 1, 1982. 764 

Memorandum from Judge Robb to Judges Bork and Gordon, October 5, 1982... 765 

Memorandum from Judge Bork to Judges Robb and Gordon, October 8, 1982... 766 

Letter from Judge Gordon to Judge Bork, December 17,1982. 768 

Declaration of Paul Larkin, September 25, 1987 . 769 

Declaration of John Harrison, September 28, 1987. 772 

Affidavit of Ruth Luff, September 25, 1987. 775 

Letter from Senator Simpson to Joan E. Bertin, September 30,1987 . 779 

Press release of the American Civil Liberties Union, September 29, 1987. 781 

Letter from Joan E. Bertin to Chairman Biden, September 29, 1987. 782 

“Memorandum and Analysis: OCAWv. American Qyonamid Co.," prepared by 

the American Civil Liberties Union. 783 

Letter from Joan E. Bertin to Senator Simpson, September 23,1987 . 785 

Letter from Betty J. Riggs to Senators, September 28, 1987 . 788 

Saturday, September 19, 1987 
Witness 

Bork, Robert H., United States Circuit Court Judge for the District of Colum¬ 
bia Circuit. 795 

Questioning by: 

Senator Heflin. 795 

Senator Specter. 815 

Senator Kennedy. 842 

Senator Hatch. 845 

Senator Simpson. 850 





































VIII 


Closing Statements 

Bork, Robert H., United States Circuit Court Judge for the District of Colum- Pane 

bia Circuit.855 

Simpson, Honorable Alan K. 856 

Hatch, Honorable Orrin G. 857 

Biden, Honorable Joseph R., Jr. 860 

Materials Submitted for the Record 

Speech by Robert Bork, “The Crisis in Constitutional Theory: Back to the 

Future,” The Philadelphia Society, April 3, 1987. 797 

Letter from Judge James Gordon to Chairman Biden, August 24, 1987. 808 

Compilation of “Unanimous Pro-Labor Law Cases,” prepared by Senator 
Hatch. 846 

Monday, September 21, 1987 

Witnesses 

Coleman, William T., O’Melveny & Myers, Washington, D.C. 867 

Questioning by: 

Senator TTiurmond. 954, 964 

Senator Hatch. 955, 964 

Chairman Biden. 962, 992, 1001 

Senator Metzenbaum. 963, 966 

Senator Simpson. 968 

Senator Heflin. 983 

Senator Grassley. 984 

Senator Specter. 988, 992 

Senator Humphrey. 993 

Senator Kennedy. 999 

Jordan, Barbara, professor. University of Texas, Austin. 1004 

Questioning by: 

Senator Kennedy. 1046 

Senator Specter. 1046 

Senator Metzenbaum. 1049 

Senator Humphrey. 1051, 1064 

Chairman Biden. 1053 

Young, Andrew, Mayor, Atlanta, Georgia. 1067 

Questioning by: 

Chairman Biden. 1078 

Senator Kennedy. 1078 

Senator Specter. 1080 

Senator Metzenbaum. 1082 

Senator Humphrey. 1083 

Senator Leahy. 1084 

Marshall, Burke, professor, Yale University Law School. 1087 

Questioning by: 

Chairman Biden. 1099 

Senator Metzenbaum. 1101 

Senator Hatch. 1102 

Senator Grassley. 1103 

Senator Specter. 1104 

Senator Humphrey. 1109 

Levi, Edward H., professor, University of Chicago Law School. 1111 

Questioning by: 

Senator Thurmond. 1120 

Senator Hatch. 1120 

Senator Specter. 1121 

Smith, William French, Gibson, Dunn & Crutcher, Los Angeles, California. 1124 

Questioning by: 

Senator Thurmond. 1132 

Senator Leahy. 1132 

Senator Grassley. 1133 

Senator Metzenbaum. 1135 

Chairman Biden. 1136 

Senator Specter. 1137 




















































IX 


Senator Humphrey...... . 1140 

Senator Simpson....... 1142 

Katzenbach, Nicholas deB„ Hiker, Danzig, Scherer, Hyland & Perretti, Mor¬ 
ristown, New Jersey. 1146 

Questioning by: 

Senator Thurmond... 1148 

Senator Leahy. 1149 

Senator Hatcn. 1160 

Senator Heflin. 1161 

Senator Simpson..... 1162 

Senator Grassley... 1164 

Senator Specter... 1166 

Rogers, William P„ Rogers & Wells, New York, New York. 1160 

Questioning by: 

Senator Thurmond......... 1169 

Senator Hatch.. 1171 

Senator Metzenbaum....... 1172,1176 

Chairman Biden. 1174 

Senator Simpson. 1176 

Senator Specter. 1178 

Senator Humphrey. 1180 

Panel: 

Tyler, Harold R., Jr., chairman, Standing Committee on Federal Judici¬ 
ary of the American Bar Association... 1184 

Flake, Robert, former chairman, Standing Committee on Federal Judici¬ 
ary of the American Bar Association... 1184 

Questioning by: 

Chairman Biden. 1186,1227,1247 

Senator Thurmond... 1189,1247 

Senator Leahy. 1198 

Senator Hatch. 1196 

Senator Metzenbaum. 1201 

Senator Simpson... 1206 

Senator Hefun. 1208 

Senator Grassley. 1210 

Senator Humphrey. 1218 


Prepared Statements 


Coleman, William T. 874 

Young, Andrew. 1071 

Marshall, Burke........ 1090 

Levi, BdwardH. 1116 

Smith, William French....... 1128 

Rogers, William. 1166 

Brownell, Herbert. 1261 


Materials Submitted for the Record 


List of “Supreme Court Briefs Where Solicitor General Bork Supported the 

Rights of Minorities,” submitted by Senator Simpson. 976 

List of "Supreme Court Briefs Where Solicitor General Bork Supported the 

K its of Women,” submitted by Senator Simpson. 978 

n questions submitted by Senator Simpson in connection with William 

Coleman’s testimony... 979 

Article by Charles L. Black, Jr., “A Note on Senatorial Consideration of 

Supreme Court Nominees,” 79 Yale Law Journal 667 (1970). 1007 

Supreme Court decision In Olmttead v. United Statu, 277 U.S. 488 (1928). 1016 

Speech by Robert Bork at the Mayflower Hotel, May 1974. 1064 

Letter from the American Bar Association to then-Chairman Strom Thur¬ 
mond regarding ths nomination of Antonin Scalia to be Associate Justice of 

the Supreme Court of the United States, August 6,1987..... 1218 

Letter from the American Bar Association to then-Chairman Strom Thur¬ 
mond regarding the nomination of William Hubbe Rehnqulst to be Associ¬ 
ate Justice of the Supreme Court of the United States, July 29,1988. 1228 

Letter from the American Bar Association to Chairman Joseph R. Biden, Jr. 
regarding the nomination of Robert H. Bork to be Associate Justice or the 
Supreme Court of the United States, September 21,1987. 1228 
















































X 


American Bar Association reprint, “Standing Committee on the Federal Judi- 1 ’w 

ciary. How it Works". 1235 

Minutes of the American Bar Association’s meeting with Judge Bork (1987 

nomination). 1250 

Letter from Harold Tyler to Senator Metzenbaum, September 4, 1987. 1255 

Letter from Senator Metzenbaum to Harold Tyler, August 26, 1987. 1256 

Excerpts from William Coleman’s Memorandum on Robert Bork for the 1982 

American Bar Association Report. 1258 

Telegram from Herbert Brownell to Chairman Biden, September 20, 1987. 1260 

Taendag, September 22, 1987 

Witnesaess 

Tribe, Laurence H., professor, Harvard Law School. 1267 

Questioning by: 

Chairman Biden. 1297 

Senator Thurmond. 1299 

Senator Kennedy. 1300 

Senator Hatch. 1303 

Senator Metzenbaum. 1307 

Senator Simpson. 1310 

Senator DeConcini. 1315 

Senator Grassley. 1318 

Senator Leahy. 1321 

Senator Specter. 1324 

Senator Heflin. 1328 

Senator Humphrey. 1330 

Panel: 

Hills, Carla A., Weil, Gotshal & Manges, Washington, D.C. 1347 

McConnell, Michael, professor. University of Chicago Law School. 1354 

Bom, Gary, adjunct professor. University of Arizona Law School. 1364 

Campbell, Thomas, professor, Stanford Law School. 1367 

Stewart, Richard, professor. Harvard Law School. 1369 

Questioning by: 

Chairman Biden. 1371 

Senator Hatch. 1373 

Senator Kennedy. 1393 

Senator Specter. 1394 

Senator DeConcini. 1398 

Senator Grassley. 1401 

Senator Metzenbaum. 1402 

Senator Humphrey. 1405 

Senator Leahy. 1408 

Senator Thurmond. 1985 

Panel: 

Bollinger, Lee, dean, University of Michigan Law School. 1987 

Styron, William, author. 1989 

Rauschenberg, Robert, artist. 1998 

Questioning by: 

Senator Kennedy. 2003 

Senator Metzenbaum. 2004 

Senator Specter. 2004 

Chairman Biden. 2006 

Senator Simpson. 2007 

Senator Humphrey. 2011 

Senator Leahy. 2013 

Panel: 

Baldwin, Donald, executive director, National Law Enforcement Council... 2016 

Stokes, Dewey, president. Fraternal Order of Police... 2023 

Vaughn, Jerald R., executive director, International Association of Chiefs 

of Police. 2038 

Fuesel, Robert, national president, Federal Criminal Investigators Asso¬ 
ciation .......... 2047 

Bellizzi, John J., executive director, International Narcotics Association 

of Police Organizations. 2052 

Hughes, John L., director. National Troopers Coalition. 2061 




















































XI 


Carrington, Frank, executive director, Victim* 1 Assistance Legal Organi- 

utlon.............. 

Blttick, L. Cary, executive director, National Sharif Association. 

Questioning by: 

Senator Thurmond. 

Senator Slmpeon...... 


Paw 

2068 

2078 


2091 


Prepared Statement* 

Tribe, Laurence H. 1272 

Hills, Carla. 1880 

McConnell, Michael. 1868 

Styron, William... 1902 

Rauechenberg, Robert. 2000 

Baldwin, Donald. 2019 

Stoke*, Dewey. 2026 

Vaughn, Jerald R. 2040 

Fueeel, Robert... 2040 

Belli**!, John J. 2066 

Hugh#*, John L. 2068 

Carrington, Frank... 2069 

Blttick, L, Cary. 2070 


Material* Submitted for the Record 


Letter to Chairman Biden and Senator Thurmond from 100 law profeeaore 
opposing Judge Bork's confirmation a* Ataodate Juatioe of the Supreme 

Court, September 22. 1987... 

Letter to Chairman Biden and Senator Thurmond from 82 law ichool dean* 
opposing Judge Bork’i confirmation a* Aaaociate Juatioe of the Supreme 

Court, September 22,1987........ 

Statement by Senator Hatch regarding Kattenbach v. Morgan ... 

Report of the Subcommittee on Separation of Power* on tne Human Life Bill, 

S. 168, 97th Cong., let Sou. (1981). 

Euaya on Judge Bork’s view* lubmitted by Carla Hill*. 

Carla Hill*. "Take the Trouble to Understand"....... 

Michael W, McConnell, "The Firet Amendment Jurisprudence of Judge 

Robert Bork"....... 

Mary Ann Olendon, "The Probable Significance of the Bork Appointment 

for Iuuee of Concern to Women”. 

Thomaa J. Campbell, “Analyai* of Judge Bork’a Labor Law Opinion*". 

Daniel D. Polaby, "Analyai* of Judge Robert Bork’* Opinion* on 8tand- 

Galy B, Bora, "Roi»rt *H7 &^ 

Richard B. Stewart, "The Judicial Performance of Robert Bork in Admin- 

letrative and Regulatory Law"..... 

Robert A. Anthony, "Judge Bork’* Dedaion* in Which He Wrote No 

Opinion: An Analyai* of the Regulatory and Benefit Case*' 1 . 

Gar^ Lawson, "Judge Bork, Separation of Power* and Special Proaecutor 

Bernard M. Meltzer, "The ACLU’a Evaluation of Judge Bork’a Employ¬ 
ment Deciaion*”..... 

Joaeph D. Grano, “The 'Reaponse to White Houw Analyai* of Judge 

Bork’* Record:' A Critical Appraisal”. 

"Retponte Prepared to White Hou*e Analyai* of Judge Bork’* Record,’’ Sep¬ 
tember 8.19877. 

Public Citizen Litigation Group book, The Judicial Record of Judge Robert H. 

Bork, August 1987....... 

AFL-CIO Executive Council statement, “Opposition to the Nomination of 
Robert H. Bork to be an Aaaociate Justice of the Supreme Court of the 

United Statu,” with aupporting memoranda, Auguat 17, 1987. 

Magazine article by Renata Adler, “Coup at the Court,” The New Republic, 

September 14 and 21,1987.... 

American Civil Liberties Union "Report on the Civil Liberties Record of 

Judge Robert H. Bork," September 9, 1987..... 

Statement of Ordway P. Burden, president, Law Enforcement Assistance 
Foundation..... 


1886 

1842 

1876 

1876 

1412 

1416 

1419 

1440 

1460 

1470 

1486 

1620 

1548 

1666 

1579 

1596 

1680 

1726 

1880 

1932 

1936 

2086 









































XII 


Letter to Chairman Biden from Alan Nelson, president. National Association I’<*kc 
of Federal Investigators, and accompanying resolution, September 10, 1987.. 2089 

Wednesday, September 23, 1987 

Witnesses 

Burger, Honorable Warren E., former Chief Justice of the United States 

Supreme Court. 2096 

Questioning by: 

Chairman Biden. 2098 

Senator Thurmond. 2100 

Senator Kennedy. 2103 

Senator Hatch. 2103 

Senator Metzenbaum. 2105 

Senator Simpson. 2106 

Senator DeConcini. 2107 

Senator Grassley. 2108 

Senator Leahy. 2110 

Senator Specter. 2111 

Senator Heflin. 2113 

Senator Humphrey. 2114 

Panel: 

Franklin, John Hope, professor, Duke University. 2118 

Leuchtenburg, William, professor. University of North Carolina. 2128 

Dellinger, Walter, professor, Duke University Law School. 2136 

Questioning by: 

Chairman Biden. 2138 

Senator Kennedy. 2140 

Senator Hatch. 2141 

Senator Leahy. 2145 

Senator Simpson. 2147 

Senator Specter. 2152 

Senator Humphrey. 2156 

Cutler, Lloyd N., Wilmer, Cutler & Pickering, Washington, D.C. 2158 

Questioning by: 

Chairman Biden. 2176, 2181, 2188, 2199 

Senator Thurmond. 2177 

Senator Kennedy. 2178 

Senator Hatch. 2182 

Senator Metzenbaum. 2184 

Senator Simpson. 2186 

Senator Leahy. 2188 

Senator Grassley. 2191 

Senator Heflin. 2192 

Senator Specter. 2194 

Senator Humphrey. 2197 

Panel: 

Thompson, James, Governor of Illinois. 2202 

Frank, John P., Lewis & Roca, Phoenix, Arizona. 2204 

Foreman, Fred L., District Attorney of Lake County, Illinois. 2221 

Questioning by: 

Senator Thurmond. 2225 

Senator Metzenbaum. 2226 

Senator DeConcini. 2228 

Senator Simpson. 2230, 2238 

Senator Leahy. 2234 

Senator Humphrey. 2236 

Prepared Statements 

Franklin, John Hope. 2122 

Leuchtenburg, William. 2132 

Cutler, Lloyd N. 2161 

Frank, John P. 2208 

Foreman, Fred L. 2222 




















































XIII 


Materials Submitted for the Record 


Newspaper article by Lloyd N. Cutler, "Saving Bork from Both Friends and Pan 1, 

Enemies,' 1 The New York Times, July 16,1987....... 2171 

Newspaper article by Lloyd N. Cutler, "Opinion: The Battle Over Bork," The 

American Lawyer, September 1987... 2173 

Newspaper article by Lloyd N. Cutler, “Judge Bork: Well Within the Main¬ 
stream,” The Washington Poet, September 16, 1987...... 2176 

Letter to the editor from Leonard Belter, The Washington Poet, September 22, 

1987 . 2238 


Friday, September 25,1987 
Witnesses 


Panel: 

Smith, Chesterfield, Holland & Knight, Miami, Florida. 2243 

Meserve, Robert W a Palmer & Dodge, Boston, Massachusetts.... 2244 

Kaufman, Robert, President, and Birnbaum, Sheila, Vice President, The 

Bar Association of the City of New York..... 2269 

Questioning by: 

Chairman Biden........... 2266 

Senator Simpson. 2267 

Senator Kennedy. 2281 

Senator Specter. 2284 

Senator Metsenbaum. 2286 

Senator Humphrey... 2288 

Senator Leahy.. 2291 

Senator Hatcn. 2292 

Senator Grassley........„....... 2302 

Sowell, Thomas, fellow, Hoover Institute. 2810 

Questioning by: 

Senator DeConcini. 2812 

Senator Thurmond.. 2816 

Senator Leahy. 2816 

Senator Hatcn... 2817 

Chairman Biden. 2820 

Senator Specter........ 2828 

Senator Heflin........... 2826 

Senator Humphrey. 2827 

Panel; 

Hufttedler, Shirley M., Hufstedler, Miller, Carlson & Beardsley, Los An- 

S California. 2881 

Barbara, professor, Stanford Law School. 2844 

via. professor. New York University Law School. 2864 

Williams. Wendy, professor, Georgetown University Law Center.. 2869 

Questioning by: 

Chairman Biden... 2882, 2892 

Senator Heflin..... 2887 

Senator Slropeon. 2889 

Senator Hatch.. 2896 

Senator Kennedy. 2899 

Senator Grassley. 2402 

Senator DeConcini. 2404 

Senator Specter... 2406 

Senator Leahy. 2407 

Senator Humphrey. 2409 

Panel: 

McDonald, Forrest, professor, University of Alabama..... 2412 

Mewlor, Daniel, professor. University of Virginia Law School. 2420 

Priest, George, professor, Yale University Law School. 2486 

Simon, John G., professor, Yale University Law School. 2446 

Rotunda, Ronald, professor, University of Illinois Law School... 2464 

Questioning by: 

Senator Heflin. 2478 

Senator Thurmond. 2479 

Senator Simpson. 2480 

Senator Specter. 2482 



















































XIV 


PaK? 

Senator Leahy. 2485 

Senator Humphrey. 2486 

Chai rman Biden... 2488 

Panel: 

Fisa, Owen, professor, Yale University Law School. 2491 

Grey, Thomas, professor, Stanford University Law School. 2514 

Resnik, Judith, professor, University of Southern California Law School... 2528 

Gewirtz, Paul, professor, Yale University Law School. 2555 

Bennett, Robert, dean, Northwestern University Law School. 2595 

Questioning by: 

Senator Thurmond. 2613 

Senator Hatch. 2615 

Senator Simpson. 2716 

Senator Humphrey. 2719 

Panel: 

Rhyne, Charles S., Rhyne & Brown, Washington, D.C. 2724 

Shepherd, John C., Shepherd, Sandberg & Phoenix, St. Louis, Missouri. 2735 

Riley, Wallace O., Riley and Roumell, Detroit, Michigan. 2748 

Bland, Jr., James T., president. Federal Bar Association. 2754 

Questioning by: 

Senator Thurmond. 2755 

Chairman Biden. 2756 

Prepared Statements 

Meserve, Robert W.. 2248 

Kaufman, Robert... 2261 

Hufstedler, Shirley. 2336 

Babcock, Barbara... 2348 

Law, Sylvia. 2358 

Williams, Wendy... 2373 

McDonald, Forrest. 2415 

Meador, Daniel.. 2423 

Priest, George L. 2439 

Simon, John G. 2448 

Rotunda, Ronald D...:.. 2457 

Fiss, Owen M. 2495 

Grey, Thomas C... 2515 

Resnik, Judith. 2532 

Gewirtz, Paul. 2558 

Bennett, Robert W... 2597 

Rhyne, Charles S. 2727 

Riley, Wallace D. 2750 

Materials Submitted for the Record 

Letter from John W. Baraum to Senator Simpson, September 22,1987 . 2269 

Letter from John W. Bamum to Robert Kaufman, September 22, 1987. 2270 

“Statement by Members of the Association of the Bar of the City of New 
York Repudiating the Unauthorized Action of its Executive Committee in 
Opposing the Nomination of Judge Robert H. Bork to the Supreme Court of 

the United States,” September 22, 1987 . 2271 

Letter from Kenneth Volk to Senator Simpson, September 24,1987 . 2275 

Letter from James T. Halverson and other previous chairmen of the Section 
of Antitrust Law of the American Bar Association to Chairman Biden, 


Newspaper article, “New York Bar Association Split Over Stand on Bork,” 

The New York Times, September 24, 1987 . 2295 

Newspaper article, “Bork's Credentials Beyond Challenge; Opponents Use 

Political Standards,” New York Law Journal, September 28, 1987 . 2296 

Letter from Diane C. Leibe to Senator Grassley, September 18, 1987. 2304 

Letter from Diane C. Leibe to committee members, undated. 2305 

Letter from Robert M. Kaufman to Chairman Biden, September 28, 1987......— 2308 

Article by Paul Gewirtz, “Senators Should Use Activist Approach in Judging 

Nominees,” Legal Times, August 10, 1987. 2591 

Letter from Emma C. Jordan, president of the Society of American Law 
Teachers, to Chairman Biden, September 22, 1987 . 2607 


















































XV 


Society of American Law Teachers, list of “Law Professors Who Subscribe to 
the Society of American Law Teachers’ Letter of Opposition to the Nomina- •‘“■w 

tion of Judge Robert H. Bork to the United States Supreme Court”. 2608 

Letter from Clark Byse to Senator Hatch, September 17,1987 . 2616 

Letter from attorneys who worked with Robert Bork in the Office of the 

Solicitor General to Chairman Biden, September 17,1987 . 2619 

Letter from Charles M. Williamson to Senator Hatch, with attachments, 

September 21,1987... 2624 

Letter from William W. Falsgraf to Chairman Biden, September 18, 1987......... 2787 

Letter from S. Shepherd Tate to Chairman Biden, September 18, 1987 . 2738 

Letter from Leonard S. Janofsky to Chairman Biden, September 18, 1987 . 2739 

Letter from Earl F. Morris to Chairman Biden, September 18,1987 . 2740 

Letter from James D. Fellers to John C. Shepherd, September 18, 1987. 2741 

Telegram from Charles S. Rhyne to President Reagan, September 13,1987 . 2742 

Article by John C. Shepherd, “In Support of Bork,” National Law Journal, 
September 21, 1987... 2744 

Monday, September 28, 1987 
Witnesses 

Panel; 

Eagleton, Senator Thomas, professor, Washington University. 2760 

Sunstein, Cass, professor, University of Chicago Law School. 2765 

Questioning by: 

m_:_oaoo onm 


Senator Thurmond. 2789 

Senator Kennedy. 2791 

Senator Specter... 2793 

Senator Leahy. 2794 

Senator Heflin. 2796 

Senator Hatch. 2797 

Senator DeConcini. 2800 

Senator Simpson. 2802 

Bell, Griffin B., King & Spalding, Atlanta, Georgia. 2805 

Questioning by: 

m_:__ ooaq ooi c 


Senator Thurmond. 2810 

Senator Kennedy. 2811 

Senator Hatch. 2813 

Senator DeConcini. 2816 

Senator Simpson. 2818 

Senator Leahy. 2820 

Senator Specter. 2822 

Senator Heflin. 2824 

Senator Humphrey. 2826 

Kurland, Philip B., professor, University of Chicago Law School. 2881 

Questioning by: 

Chairman Biden. 2849 

Senator Kennedy. 2850 

Senator Simpson. 2852 

Senator Specter. 2853 

Senator Hatch. 2855 

Senator Humphrey. 2857 

Panel: 

Thornburgh, Richard, director, John F. Kennedy Institute of Politics. 2863 

Randolph, A. Raymond, Pepper, Hamilton & Scneetz, Washington, D.C. 2868 

LaFontant, Jewel S., Vedder, Price, Kaufman & Kammholz, Chicago, 

Illinois. 2884 

Smith, Stuart A., Shea & Gould, New York, New York.. 2892 

Questioning by: 

Senator Specter... 2899 

Senator Humphrey. 2901 

Panel: 

Bator, Paul, professor, University of Chicago Law School... 2910 

Monaghan, Henry, professor, Columbia University Law School. 2926 

BeVier, Lillian Riemer, professor. University of Virginia Law School. 2927 

Levin, A. Leo, professor, University of Pennsylvania Law School. 2935 





















































XVI 


ttltw 

Oaks, Dallin H., former professor, University of Chicago Law School. 2941 

Questioning by: 

Senator Simpson. 2949 

Senator Leahy. 2951 

Senator Hatch. 2952, 2958, 2963 

Senator Heflin. 2954 

Senator Specter. 2956 

Senator EteConcini. 2962, 2975 

Senator Humphrey. 2973 

Senator Thurmond. 2974 

Panel: 

Krane, Howard G., Kirkland & Ellis, Chicago, Illinois. 2980 

Carlock, George Reed, Ryley, Carlock & Applewhite, Phoenix, Arizona 2986 

Questioning by: 

Senator Thurmond. 2994 

Dean, Kenneth, pastor. First Baptist Church, Rochester, New York. 2995 

Questioning by: 

Senator Specter.. 3011 

Senator Humphrey. 3015- 

Senator Thurmond. 3019 

Prepared Statements 

Eagleton, Thomas. 2762 

Sunstein, Cass R. 2767 

Kurland, Philip B. 2835 

Thornburgh, Richard. 2865 

Randolph, A. Raymond. 2870 

LaFontant, Jewel. 2887 

Smith, Stuart. 2895 

Bator, Paul M . 2912 

BeVier, Lillian Riemer. 2930 

Levin, A. Leo. 2936 

Oaks, Dallin H. 2944 

Krane, Howard. 2981 

Carlock, George Reed. 2989 

Dean, Rev. Kenneth R. 2999 

Materials Submitted for the Record 

Resume of Jewel S. LaFontant. 2902 

Letter from Edith-Marie Dolan to Senator Hatch, September 28, 1987. 2968 

Telegram from Professor Lucinda Finley, Yale Law School, to Chairman 

Biden, September 24, 1987. 2977 

Telegram from Professor Carol Gilligan, Harvard University Graduate School 

of Education, September 24, 1987. 2978 

Letter from Warren I. Cikins to The Washington Post, July 28, 1987. 3017 

Letter to the Editor from Joshua O. Haberman, The Washington Post, August 
6, 1987. 3018 

Tuesday, September 29, 1987 

Witnesses 

Panel: 

Kay, Herma Hill, professor, Boalt School of Law, University of California, 

Berkeley. 3025 

Richards, David, A.J., professor, New York University Law School. 3047 

Sullivan, Kathleen, professor, Harvard Law School. 3070 

Questioning by: 


Senator Kennedy. 3082 

Senator Simpson. 3084, 3087 

Senator Metzenbaum. 3088 

Senator Grassley. 3097 

Senator DeConcini. 3099 

Senator Specter. 3102 

Senator Leahy. 3104 


















































Senator Humphrey. 3106 

Senator Heflin. 3108 

Richardson, Elliot L., Mil bank, Tweed, Hadley & McCloy, New York, New 
York. 3112 

Questioning by: 

Senator Thurmond. 3121 

Senator Kennedy. 3121 

Senator Specter... 3131 

Senator Heflin. 3132 

Senator Hatch. 3133 

Chairman Biden. 3148, 3158, 3160 

Senator Leahy... 3149 

Senator Simpson... 3151 

Senator Grassley.... 3156 

Senator Humphrey... 3157, 3158 

Panel: 

Dymally, Honorable Mervyn, UjS. Congressman, State of California. 3162 

Conyers, Honorable John, Jr., U.S. Congressman, State of Michigan. 3166 

Fauntroy, Honorable Walter E., Delegate, District of Columbia. 3175 

Questioning by: 

Chairman Biden. 3187 

Senator Kennedy.. 3188 

Panel: 

Ruth, Henry, counsel, Unisys. 3192 

Frampton, George, president. The Wilderness Society. 3194 

Questioning by: 

Senator Kennedy. 3204, 3209 

Senator Thurmond. 3205 

Senator Hatch. 3207,3213 

Senator Metzenbaum. 3211 

Senator Leahy... 3232, 3238 

Senator Simpson. 3234 

Senator Humphrey. 3237 

Panel: 

Casper, Gerhard, former dean, University of Chicago Law School. 3240 

Davenport, Ronald, former dean, Duquesne Law School. 3250 

Frankino, Steven, dean, Villanova University Law School. 3252 

Holland, Maurice, dean, University of Oregon Law School. 3257 

Morgan, Thomas, dean, Emory University Law School... 3269 

Rostow, Eugene, professor emeritus, former dean, Yale University Law 

School. 3279 

Sandalow, Terrance, former dean. University of Michigan Law School. 3289 

Questioning by: 

Chairman Biden. 3270, 3308 

Senator Thurmond. 3305 

Senator Humphrey. 3306 

Senator Specter. 3309 

Panel: 

Areeda, Phillip, professor, Harvard Law School. 3313 

Baker, Donald I., Sutherland, Asbill & Brennan, Washington, D.C. 3314 

Halverson, James T., Shearman & Sterling, New York, New York. 3328 

Kauper, Thomas, professor. University of Michigan Law School. 3338 

Questioning by: 

Chairman Biden. 3345 

Senator Thurmond. 3347 

Prepared Statements 

Kay, Henna Hill. 3027 

Richards, David A.J. 3050 

Sullivan, Kathleen M. 3072 

Richardson, Elliot L. 3116 

Dymally, Mervyn M. 3163 

Conyers, John. 3168 

Fauntroy, Walter E. 3179 

Frampton, George T., Jr.3197 

Casper, Gerhard. 3247 

Davenport, Ronald. 3251 

























































XVIII 


Pane 

Frankino, Steven P. 8264 

Holland, Maurice J. 8261 

Morgan, Thomas D.. 8278 

Roetow, Eugene V... 8282 

Sandalow, Terrance. 8292 

Baker, Donald I......... 3317 

Halverson, James T. 8331 

Kauper, Thomas E. 8340 

Materials Submitted for the Record 

Letter from Laurence Gold of the AFL-CIO to Senator Metzenbaum, Septem¬ 
ber 28,1987 . 3090 

AFL-CIO “Memorandum on Judge Bork’s Opinion and Testimony Concerning 

the American Cyanamid Case”. 3091 

Federal regulations pertaining to the creation of the Watergate Special Pros¬ 
ecution Force, May 81,1973..... 3126 

Hearings before the Committee on the Judiciary, Nomination of Elliot Rich¬ 
ardson to be Attorney General, 93d Cong., 1st Seas., May 9,10,14,16, 21 and 

22,1973, p. 186. 3128 

Memorandum, “67 Flaws of the Bork Ad,” submitted by Senator Hatch. 3136 

Memorandum from Morton Halperin and Jerry Berman, ACLU, to Senator 

Simpson, September 28, 1987....... 8164 

Letter from Morton Halperin and Jerry Berman, ACLU, to the Editor, City 

Paper, September 28,1987,.,........ 8166 

Federal regulation pertaining to the abolition of the Office of the Watergate 

Special Prosecution Force, October 23,1978..... 3210 

Statement of Philip A. Lacovara, September 1987 . 3214 

Statement of Henry E. Peterson, September 22,1987... 3222 

Affidavit of Ralph K. Winter, September 25,1987 . 3226 

Letter from Gerhard Casper and Robert Mundheim to Chairman Biden, 

August 26, 198F7......... 3241 

Letter to the Editor from Eugene V. Rostow, The New York Times, August 3, 

1987 (published and unpublished)....... 3287 

Article by Donald I. Baker, "The Lawyer's Bookshelf: Review of The Antitrust 
Paradox," New York Law Journal, July 7,1978.. 3288 

Wednesday, September SO, 10S7 
Witnesses 

Panel: 

Abrams, Robert, Attorney General of the State of New York. 8414 

Brown, Charles, Attorney General of the State of West Virginia. 3430 

Pitoftky, Robert, dean, Georgetown University Law Center. 3441 

Questioning by: 

riL-I_t,: J - Q A AO OE(U OK1R QCQ1 


Senator Thurmond..... 3510, 3516 

Senator Kennedy............... 3618 

Senator Simpson... 8517 

Senator Metzenbaum ....... 3521, 3528 

Senator Graasley.......... 8528, 8529 

Senator DeCondni. 3624 

Senator Specter. 8526 

Senator Leahy...... 3528 

Senator Hatch. 3534 

Senator Heflin. 8535 

LaHaye, Beverly, Concerned Women of America. 3687 

Questioning by: 

Senator DeConcini. 3641 

Senator Humphrey. 3642 

Senator Hatch..... 8644, 8662 

Senator Thurmond. 3651 

Chairman Biden. 8552 

Senator Specter.... 3574 

Martinez, Vilma S., Munger, Tolies & Olsen, Los Angeles, California. 8576 

Questioning by: 

Senator Kennedy.. 3615 
















































XIX 


PiiKe 

Senator Simpson. 3616 

Senator Heflin... 3618 

Senator Specter. 3619 

Chairman Biden. 3621 

Senator Grassley. 3622 

Handler, William, Rabbi, Union of Orthodox Rabbis of tbe United States and 

Canada. 3626 

Questioning by: 

Chairman Biden. 3629, 3634 

Senator Thurmond. 3630 

Senator Leahy. 3631 

Senator Simpson .. 3633, 3635 

Senator Specter. 3636 

Senator Grassley. 3638 

Senator Humphrey. 3639 

Panel: 

Clay, John, John C. Roberts, and John Boley, Lawyers for the Judiciary.... 3688 
Questioning by: 

Senator Thurmond.. 3786 

Senator Simon. 3787 

Senator Specter. 3788 

Senator Heflin. 3790 

Innis, Roy, Congress of Racial Equality. 3792 

Questioning by: 

Senator Specter.... 3804 

Senator Metzenbaum. 3804, 3806 

Senator Thurmond. 3805 

Panel: 

Daskal, Dmitri G., counsel, Service Station Dealers of America; The 

Pocketbook Coalition. 3809 

Foer, Albert A., president, Melart Jewelers... 3824 

Brownell, Herbert, Lord, Day & Lord, New York, New York. 3838 

Questioning by: 

Senator Thurmond. 3841 

Senator Simpson. 3842 

Senator Grassley. 3842 

Panel: 

Kliesmet, Robert, International Union of Police Associations. 3850 

Hampton, Ronald, National Black Police Association. 3860 

Johnson, Harold, National Organization of Black Law Enforcement Ex¬ 
ecutives. 3863 

Questioning by: 

Senator Thurmond. 3869 

Senator Metzenbaum. 3871 

Senator Simpson. 3872 

Closing Statements 

Kennedy, Honorable Edward M. 3873 

Heflin, Honorable Howell T. 3893 

Thurmond, Honorable Strom. 3893 

Biden, Honorable Joseph R., Jr. 3894 

Prepared Statements 

Abrams, Robert. 3417 

Brown, Charles G. 3432 

Pitofsky, Robert. 3443 

LaHaye, Beverly. 3539 

Martinez, Vilma S. 3580 

Lawyers for the Judiciary. 3692 

Innis, Roy. 3794 

Daskal, Dimitri G. 3811 

Foer, Albert A. 3826 

Brownell, Herbert. 3839 

Kliesmet, Robert B. 3853 

Hampton, Ronald. 3862 

Johnson, Harold. 3865 





















































XX 


Materials Submitted for the Record 


List of “Law Schools at Which Law Professors Signed Letters In Opposition to Pas* 

Robert Bork's Nomination to the Supreme Court”. 3351 

List of “Law Professors Who Signed Letters in Opposition to Robert Bork's 

Nomination to the Supreme Court"..... 3355 

Statement of Maxwell M. Blecher.,. 3465 

Statement of Lawrence A, Sullivan, September 1987,,,. 3479 

Statement of Herman Schwarts, September 29, 1987... 3491 

Article by Herman Schwartz, "The Frantic Reflagging of Bork.” The Nation, 

September 19, 1987,...,.... 3504 

Article by Jamie Kaiven, "Bork v, The First,” The Nation, September 19, 

1987,,,,, ....... 8507 

Excerpt from Robert Bork’s book, The Antitrust Paradox, p, 407,..,.3520 

Hearings Before the Committee on the Judiciary, "The Selection and Confir¬ 
mation of Federal Judges," 97th Cong,, 2nd Sess., January 27, February 12, 

26 and March 11, 24, 31, p, 2091-92. 3531 

Transcript of Proceedings, Subcommittee on Antitrust, Monopolies and Busi¬ 
ness Rights, S, 667, Malt Beverage Interbrand Competition Act, August 4, 

1987, p. 67 . 3533 

Harris Survey, "Public Opposes Bork Nomination by 59-27%,” September 28, 

1987.!.. 3547 

"Response to the Statement of John P, Frank,” prepared by Senator Hatch. 8554 

Materials submitted by Rabbi Handler... 3042 

Telegram from Herbert Brownell to Chairman Biden, September 20, 1987. 8839 

Letter from Professor Stephen J. Schulhofer to Chairman Biden, September 

28,1987. 3844 

"Response to Submission by John P. Frank,” prepared by Senator Humphrey, 3876 
List of majority and minority staff members who assisted with the hearings „„ 3894 

















POST-HEARING CORRESPONDENCE BETWEEN JUDGE BORK 
AND THE COMMITTEE 


PaK<* 

Letter from Judge Bork to Chairman Biden regarding equal protection and 

right to privacy, October 1, 1987. 389(1 

Letter from Judge Bork to Chairman Biden regarding Vander Jagt v. O'Neill, 

with attachments, October 1, 1987. 3911 

Letter from Judge Bork to Chairman Biden in response to Senator Weicker’s 
inquiry regarding the religion clauses, October 1, 1987, with letter from 

Senator Weicker, September 11, 1987. 3933 

Letter from Judge Bork to Chairman Biden in response to Senator Leahy’s 
inquiry regarding timely filings, October 2, 1987, with attachments and 

with letter from Senator Leahy, September 23, 1987 . 3937 

Letter from Judge Bork to Chairman Biden in response to Senator Byrd’s 

inquiry regarding campaign finance, October 5, 1987. 3948 

Letter from Judge Bork to Chairman Biden in response to Senator Simon’s 
inquiry regarding the televising of Supreme Court proceedings, October 5, 

1987, with letters from Senator Simon. 3954 

Letter from Judge Bork to Chairman Biden regarding unfair advertising, 

October 5, 1987. 3957 

Letter from Judge Bork to Chairman Biden in response to Senator Metz- 
enbaum’s inquiry regarding the Second Amendment, October 5, 1987 . 3958 


(XXI) 











ADDITIONAL SUBMISSIONS FOR THE RECORD 


Ad Hoc Committee for Principled Dlecuiiloni of Comtitutional I hum: 

Letter from Sidney Hook to Chairman Blden, September 28,1987.. 

Statement, September 28,1987....... 

Agudath lerael of America: 

Memorandum, September 21,1987......... 

Alles aert, Winthrop <T: 

Letter to Chairman Biden, September 22,1987. 

"'Statement by Member* of the Aaaociation of the Bar of the City of New 
York Repudiating the Unauthorised Action of it* Executive Committee 
in Opposing the Nomination of Judge Robert H. Bork to the Supreme 

Court of the United State*,” September 22,1987..,. 

Alliance for Juetice: 

Statement.,,....... 

Amerlcan-Arab Anti-Discrimination Committee: 

Statement of Albert Mokhiber, October 6,1987... 

American Aeeociation of Univereity Women: 

Statement Of Sarah Harder, October 1,1987...... 

American Civil Libertie* Union: 

Statement, October 5,1987..... 

"Report on the Civil Libertie* Record of Judge Robert H. Bork”, Septem¬ 
ber 9, 1987.. 

"The Essential Judge Bork. A Report on the Testimony of Judge Robert 
H. Bork Before the Senate Judiciary Committee and an Analysis of His 

Constitutional Doctrine," October 2,1987.. 

American Jewish Congress: 

Statement of Marvin Frankel, September 80, 1087...... 

American Medical Student Association: 

Statement of Drs. P. Preston Reynolds and Grace Heitsch, September 30, 

1987..... 

American* for Democratic Action: 

Statement of Joseph Rauh, October 1987... 

Americans for Religious Liberty: 

Statement of Ed Doerr, September 30,1987... 

Antitrust Law A Economics Review: 

Letter from Charles E. Mueller to Senator Kennedy, August 13,1987. 

Editorial, “Foreword: Antitrust, the Supreme Court, and the Bork 

Factor"..... 

Antitrust professors in opposition to the nomination: 

Letter to Chairman Blden, September 29,1987. 

Asian American Bar Association of the Greater Bay Area: 

Letter from Hon Chew, September 15, 1987... 

Attorneys in opposition to the nomination: 

Statement, October 2, 1987..,,... 

Attorneys in Washington, D.C. in opposition to the nomination: 

Letter to Chairman Biden, October 5,1987. 

Avins, Alfred: 

Statement... 

Becker, Mary: 

Letter to Chairman Biden, September 23,1987... 

Berkeley Commission on Peace and Justice: 

Memorandum, with attachments, September 80, 1087. 

B'nai B'rith Women: 

Statement, September 1987. 

Bolton, John: 

Letter to Judge Bork, September 28, 1987 ... 


Pas* 

8959 

8960 

8964 

8978 

8074 

8978 

8987 

8990 

8995 

4008 

4053 

4103 

4130 

4134 

4147 

4151 

4152 
4166 
4170 
4173 
4178 
4182 

4184 

4185 
4204 
4208 


(XXIII 




























XXIII 


Bork, Judge Robert H.: Pa « e 

Letter to Chairman Biden, September 28, 1987. 4209 

Letter to Judge Tyler, September 28, 1987 . 4210 

Brigham Young University, J. Reuben Clark Law School: 

Letter from faculty members, September 28, 1987. 4211 

Broderick, Albert: 

“Blind Spot for Blacks—and Women”. 4212 

Brown, Harold: 

“Controversy Over Bork’s Nomination No Surprise,” Massachusetts Law¬ 
yers Weekly, September 7, 1987. 4224 

Business and Professional Women’s CHubs/USA: 

Letter from Linda Colvard Dorian to Chairman Biden, October 2, 1987. 4227 

Statement. 4229 

Carter, Honorable Jimmy: 

Letter to Chairman Biden, September 29, 1987 . 4249 

Chicago Council of Lawyers: 

Letter to Senator Simon, September 11, 1987. 4251 

Report, September 11, 1987. 4252 

Children’s Defense Fund: 

Statement of Marian Wright Edelman, September 28, 1987. 4264 

Childs, Marjorie: 

Statement. 4281 

Christofferson, Clyde: 

Letter to the Editor, The Wall Street Journal, September 26, 1987. 4287 

Citizens’ Advisory Committee, The District of Columbia Bar: 

Letter from Chauncey Fortt to Chairman Biden, October 2, 1987. 4292 

Citizens Against Bork: 

Tape transcription. 4294 

Citizens for Decency Through Law, Inc.: 

Statement. 4302 

Citizens for God & Country: 

Statement, with attachments, September 21, 1987. 4312 

Clinton, Governor Bill: 

Statement. 4320 

Collins, Cardiss: 

Statement. 4328 

Committee for a Fair Confirmation Process: 

“A Response to the Majority Report in the Senate Confirmation Proceed¬ 
ings of Judge Robert H. Bork,” November 2, 1987 . 4332 

Common Cause: 

"Why the United States Senate Should Not Consent to the Nomination of 
Judge Robert H- Bork to be a Justice of the Supreme Court,” Septem¬ 
ber 1987. 4457 

Community Free Democrats: 

Letter to Chairman Biden, September 30, 1987 . 4472 

Conover, Bev and Elton M., Jr.: 

Letter to committee members, September 29, 1987. 4473 

Crown, Joseph: 

Letter to the Editor, The Mexico City News, August 28, 1987 . 4479 

“The Supreme Court Crisis: The Bork Nomination,” August 30, 1987. 4480 

Davidow, Robert P.: 

Statement. 4483 

Denominational Ministry Strategy: 

Letter from Rev. D. Douglas Dove and Rev. Daniel N. Solberg to Diana 

Huffman, September 15, 1987. 4491 

Letter from Rev. D. Douglas Dove, Rev. Daniel N. Solberg and Charles 

Honeywell to Diana Huffman, October 7, 1987. 4493 

District of Columbia Democratic State Committee: 

Letter from James M. Christian to Chairman Biden, September 18, 1987... 4495 

Resolution. 4496 

Drach. Mitchell R.: 

Letter to Chairman Biden, October 2, 1987. 4498 

Dunn, James, et al.: 

Letter to Senator Simon, September 30, 1987. 4499 

Dean, Rev. Kenneth, “Bork Thrives on Confrontation, Lives for the Spot¬ 
light,” Rochester Times-Union, August 14, 1987. 4500 

Executive Leadership Council: 

Statement, October 9, 1987. 4501 




































XXIV 


Federal regulations (OSHA) jX); '..ining to occupational exposure to lead, No 

vember 14 and 21, 1987. 

Federation of Women Lawyers Judicial Screening Panel, Women’s Legal De¬ 
fense Fund, NOW Legal Defense and Education Fund, Equal Rights Advo- 
cates: 

Statement, October 19, 1987. 

Feeney, Floyd and Mahoney, Barry: 

Letter to Chairman Biaen, October 5, 19K7. 

"The Lawfulness of Robert Bork’s Firing of the Watergate Special Pros¬ 
ecutor," October (i, 1987. 

Feinberg, Margo A.: 

Letter to Chairman Biden regarding views of locol California bar associa¬ 
tions, September 22, 1987. 

Flynn, John J.: 

Statement... 

Foster, Byron C.: 

Letter to Chairman Biden, September 21, 1987. 

Freedman, Monroe H,: 

Letter to Chairman Biden, September 29, 1987. 

Goldstein, Joseph: 

"That Was the Real Bork Who Testified,” The New York Timet, Septem¬ 
ber 27, 1987. 

Gordon, Judge James F.: 

Affidavit, October 2, 1987. 

Hazard, Geoffrey C., Jr.: 

Letter to Chairman Biden, September 1ft, 1987. 

Hispanic National Bar Association: 

Statement of John Martinez. 

Hufstedler, Shirley M,: 

Letter to Senator Kennedy, October 8, 1987. 

Letter to Senator Kennedy, October 8, 1987. 

Lawyers’ Committee for Civil Rights Under Law: 

Letter from Conrad K, Harper and Stuart J, Lund to Chairman Biden, 

September 80, 1987. 

Statement of Conrad K. Harper, for Individual Members of the Lawyers' 
Committee for Civil Rights Under Law, and Individual Members of 

Local Lawyers' Committees, September 29, 1987. 

"On the Nomination of Judge Robert H. Bork as an Associate Justice of 

the United States Supreme Court". 

Letter from Conrad K. Harper and Stuart J, Land to Chuirman Biden, 

September 14,1987. 

"Memorandum on the Nomination of Judge Robert H. Bork as an Associ¬ 
ate Justice to the United States Supreme Court”. 

Leadershp Conference on Civil Rights: 

Statement of Benjamin HookB, October 1987.. 

Statement, September 17, 1987. 

"Bork v. Bork,” with supplement. 

"The Bork Record on Labor". 

"Summary of Some of the Major Arguments Against the Nomination of 

Robert Bork". 

Lebron, Michael: 

Letter to Diana Huffman, September 19, 1987.... 

Lee, Joseph D,: 

Affidavit, with attachments, October 2, 1987 . 

Licht, Richard A.: 

Statement... 

"Brief in Opposition to the Nomination of Judge Bork to the Supreme 

Court”. 

Lipshutz, Robert J.: 

Letter to Chairman Biden, September 29, 1987. 

Maryland Association of Equal Opportunity Personnel: 

Statement of Yvonne A. Edwards. 

McAninch, William S.: 

Letter to Chairman Biden, September 21, 1987. 

McLaughlin, Francis X.: 

Statement, with attachments. 


PaK* 

41510 


41581 

4552 

4554 

4592 
4595 
4(124 
4628 • 


4627 

4628 

4688 

4639 

4848 

4855 

4661 

4683 

468(1 

4692 

4693 

4739 

4743 

4745 

4752 

4757 

4761 

4762 
4771 
4776 
4791 
4782 

4796 

4797 



































XXV 


Mental Health Law Project: 

Letter from Norman S. Rosenberg to Chairman Biden, September 15, Page 

1987. 4806 

“Judge Bork and the Rights of Disabled People”. 4807 

Letter from Leonard S. Rubenstein to Diana Huffman, October 2, 1987. 4818 

Statement of Leonard S. Rubenstein, October 5, 1987 . 4822 

Mexican American Legal Defense and Educational Fund: 

Statement of Antonia Hernandez, October 5, 1987 . 4838 

Minnesota Coalition of 372,000 to Stop Bork: 

Letter of Rev. Lee S. Wiskochil to Chairman Biden, September 25, 1987. 4852 

Attachments. 4853 

Minnick, John B.: 

Letter to Chairman Biden, September 22, 1987. 4885 

Letter to Senator Hatch, September 22, 1987. 4886 

Letter to Senator Hatch, with attachments, August 19, 1987. 4887 

Minority Business Enterprise Legal Defense and Education Fund, Inc.: 

Statement. 4896 

NAACP Legal Defense and Educational Fund, Inc.: 

“Bork v. Bork. A Comparison of Judge Bork’s Confirmation Testimony 
with His Previous Speeches and Articles,” with People for the Ameri¬ 
can Way Action Fund, September 1987. 4908 

Letter from Elaine R. Jones and Eric Schnapper to Chairman Biden, 

October 5, 1987. 4972 

“Most Recent Date of Bork Criticism of Supreme Court Constitutional 

Precedents,” with attachments, October 5, 1987. 4974 

Statement of Julius L. Chambers, October 5, 1987. 5042 

Statement of James M. Nabrit, III, October 8, 1987*.. 5055 

Nader, Ralph: 

Letter to Chairman Biden, October 12, 1987, with attachments. 5059 

Nation Institute: 

Letter from Emily Sack to Chairman Biden, October 1, 1987. 5083 

“The Bork Report. The Supreme Court Watch Project’s Analysis of the 

Record of Judge Robert H. Bork”. 5084 

National Abortion Rights Action League: 

"The Opposition to Bork: The Case for Women’s Liberty”. 5266 

“Bork as 'Confirmation-day Moderate,’ ’’ September 16, 1987. 5307 

National Association for the Advancement of Colored People: 

Statement of Althea T.L. Simmons, September 1987. 5309 

Nathaniel R. Jones, “The Desegregation of Urban Schools Thirty Years 
After Brown,” 55 Colorado Law Review 4, Summer 1984, 525, 537-541.... 5338 
Olive Taylor, “Two Hundred Years, An Issue: Ideology in the Nomination 
and Confirmed Process of Justices to the Supreme Court of the United 

States,” September 1987 . 5382 

J. Clay Smith, Jr., “A Response to Professor Robert. Bork’s ’Giving Mean¬ 
ing to the Constitution: Competing Visions of Judicial Review,’ ” June 

12, 1987. 5482 

J. Clay Smith, -Jr., “Toward Pure Legal Existence: Blacks and the Consti¬ 
tution,” June 18. 1987. 5490 

Letter from Howard University School of Law faculty members to Chair¬ 
man Biden and Senator Thurmond, September 17, 1987. 5511 

National Association of Criminal Defense Lawyers: 

Statement of Joseph Tydings. 5514 

National Association of Evangelicals: 

Statement of Robert P. Dugan, Jr., October 2, 1987. 5526 

National Bar Association: 

Letter from Walter L. Sutton, Jr. to Chairman Biden, September 29, 1987. 5532 
National Black Caucus of State Legislators: 

Statement of Hon. David P. Richardson, Jr., September 1987. 5533 

National Coalition for Women and Girls in Education: 

Letter from Jill Miller to Chairman Biden, September 25, 1987. 5538 

National Conference of Black Lawyers and Medgar Evers College for Law and 
Social Justice: 

Statement. 5541 

National Council of the Churches of Christ: 

Letter from Bishop Philip R. Cousin and Dr. Arie R. Brouwer to Chair¬ 
man Biden, October 1, 1987. 5549 

Letter from James A. Hamilton to Chairman Biden, October 1, 1987. 5550 




































XXVI 


“Resolution Opposing the Nomination of Judge Robert H. Bork to the f ‘ a z v 

Supreme Court of the United States”. 6661 

National Conference of Women’s Bar Associations: 

Statement, September 17,1987..... 5571 

National Council of Jewish Women: 

Statement. 6575 

National Education Association: 

Letter from Kenneth F. Melley to Chairman Biden, October 1, 1987. 5677 

Statement, October 1, 1987. 5678 

National Family Planning and Reproductive Health Association, Inc.: 

Statement of Scott R. Swirling, October 5, 1987. 5686 

National Lawyers Guild: 

Statement of Haywood Bums, with attachments. 5688 

National Press Inc.: 

Statement of Joel D. Joseph, October 3,1987 . 5600 

National Urban League, Inc.: 

Statement of Douglas G. Glasgow, October 5,1987 . 5606 

National Women’s Law Center 

Statement of Marcia D. Greenberger, Suzanne E. Meeker and Ellen J. 

Vargyaa, with attachment, October 6, 1987 . 5611 

National Women’s Political Caucus: 

Statement of Irene Natividad, October 5, 1987 . 5663 

Natural Resources Defense Council: 

Latter from Adrian W. DeWind to Chairman Biden, September 22, 1987.... 5670 

Memorandum, September 22, 1987... 5673 

New York State Defenders Association, Inc.: 

Letter from Wilfred R. O’Connor to Chairman Biden, September 16, 1987 . 5683 
Nolan, Robert L.: 

Letter to Chairman Biden, September 21, 1987 . 6684 

Patriotic Majority: 

“The Case oi Bork Versus the American Revolution”. 5685 

Pearce, Jack: 

Letter to Chairman Biden, August 17, 1987 . 6688 

“Recommendation that Judge Robert Bork Not be Confirmed as an Asso¬ 
ciate Justice of the United States Supreme Court on the Basis of 
Deficiencies in His Approach to Interpretation of the Antitrust Laws”... 6692 
People for the American Way Action Fund: 

Statement of John R. Buchanan, October 1987. 5701 

“Judge Bork's Views Regarding Supreme Court Constitutional Prece- 

iloni ** ttrith fVm WA A PP T ruvol FWifortcci unH TTrlnoo tmnal TtSin/1 Tn/* 


Physicians Forum, Inc.: 

Statement, September 14,1987. 6888 

Pilpel, Harriet F.: 

Letter to Chairman Biden, September 16, 1987 . 6892 

Planned Parenthood Federation of America: 

Statement of Faye Wattleton, October 5,1987 . 6893 

Popeo, Daniel J. and Kamenar, Paul D.: 

“The Questionable Role of the ABA in the Judicial Selection Process”. 5898 

Public Citizen Litigation Group: 

Statement, October 5,1987 . 5913 

“Judge Bork’s Civil Rights Record on the Court of Appeals”. 5931 

“Statistics Lie: Response to Statistics Frequently Cited by the White 
House to Support Nomination of Judge Bork”. 5939 

“Statement Of Alan B. Morrison Concerning Nader v. Bork and the 
Nomination of Judge Robert H. Bork to be Associate Justice of the 

Supreme Court of the United States,” October 5,1987. 6941 

Puerto Rican Legal Defense and Education Fund, Inc.: 

Statement, October 2, 1987 . 6003 

Roberts, John C.: 

“Judge Bork’s Legal Philosophy”. 6008 

San Francisco Lawyers’ Committee for Urban Affairs: 

Letter from Mark N. Aaronson to Chairman Biden, October 1, 1987. 6016 

“Resolution of the Executive Committee in Opposition to the Nomination 

of Robert H. Bork to the Supreme Court of the United States”. 6017 

Schauer, Frederick: 

Letter to Chairman Biden, September 22, 1987 . 6018 

































XXVII 


Schwartz, Louis B.: Pa S e 

Letter to Senator Leahy, September 10, 1987. 6022 

“Bork: Why Conservatives Should Oppose Him”. 6023 

“Moderate Bork? Defender of the First Amendment?”. 6027 

Simon, John G.: 

Letter to Chairman Biden, September 29, 1987 . 6029 

Sinclair, I.B.: 

Memorandum, with attachments, October 6, 1987 . 6032 

Strong, Jerome A.: 

Statement. 6049 

Suffolk University Law School: 

“Report on the ‘Judge Bork Survey’ of Constitutional Law Professors,” 

October 5, 1987 . 6058 

Tachau, David Brandeis: 

Affidavit, October 1, 1987. 6062 

United Automobile, Aerospace & Agricultural Implement Workers of Amer¬ 
ica, UAW, International Union: 

Statement, September 1987. 6066 

Statement of Owen Bieber, September 1987. 6078 

United States Justice Foundation: 

Statement of Gary G. Kreep. 6085 

University of Akron: 

Letters from faculty members to Senator Metzenbaum... 6086 

University of California, Berkeley, School of Law: 

Letter from faculty members to Chairman Biden and Senator Thurmond, 

with attachments, September 15, 1987. 6090 

University of California, Davis, School of Law: 

Letter from faculty members to Chairman Biden, September 16, 1987. 6092 

University of California, Santa Barbara: 

Letter from members of the Chicano/Latino Faculty Caucus to Chairman 

Biden, September 24, 1987. 6095 

University of Texas at Austin Law School: 

Letter from faculty members to Chairman Biden and Senator Thurmond, 

September 1, 1987. 6099 

University of Wisconsin Law School: 

Letter from faculty members to committee members, September 16, 1987.. 6104 
Volk, Kenneth H.: 

Letter to Senator Hatch, September 24, 1987. 6106 

Vorenberg, James: 

Letter to Chairman Biden, September 28, 1987 . 6107 

Washington Council of Lawyers: 

Letter from Dennis A. Henigan to Chairman Biden, September 18, 1987 . .. 6108 
Washington Legal Foundation: 

Statement, September 23, 1987. 6111 

Weiss, Congressman Ted: 

Statement, September 29, 1987. 6117 

Wilken, Madeleine: 

Letter to Chairman Biden and Senator Thurmond, September 9, 1987 . 6122 

Wilkey, Malcolm: 

Letter to Chairman Biden and Senator Thurmond, September 24, 1987. 6124 

Women’s Bar Association of the State of New York: 

Statement of Committee to Review the Nomination of Judge Robert H. 

Bork, September 1987. 6127 

Yale Law School students: 

Record of opposition to Judge Bork’s confirmation, September 11, 1987. 6144 

Youth for Democratic Action: 

Statement of Daniel Press, October 1987. 6145 

Zebtey, John: 

Letter to Chairman Biden, September 13, 1987. 6150 





























ALPHABETICAL INDEX OF WITNESSES, QUESTIONING AND 
MATERIALS SUBMITTED FOR THE RECORD 


Page 

Abrams, Robert: 

Prepared Statement. 3417 

Testimony. 3414 

Ad Hoc Committee for Principled Discussions of Constitutional Issues: 

Letter from Sidney Hook to Chairman Biden, September 28, 1987. 3959 

Statement, September 28, 1987. 3960 

Adler, Renata: 

“Coup at the Court,” The New Republic, September 14 and 21, 1987. 1932 

AFL-CIO: 

Letter from Laurence Gold to Senator Metzenbaum, September 28, 1987... 3090 
“Memorandum on Judge Bork’s Opinion and Testimony Concerning the 

American Cyanamid Case”. 3091 

“Opposition to the Nomination of Robert H. Bork to be an Associate 
Justice of the Supreme Court of the United States,” with supporting 

memoranda, August 17, 1987. 1880 

Agudath Israel of America: 

Memorandum, September 21, 1987. 3964 

Allegaert, Winthrop J.: 

Letter to Chairman Biden, September 22, 1987. 3973 

Alliance for Justice: 

Statement. 3978 

American-Arab Anti-Discrimination Committee: 

Statement of Albert Mokhiber, October 5, 1987. 3987 

American Association of University Women: 

Statement of Sarah Harder, October 1, 1987. 3990 

American Bar Association: 

Testimony of Harold R. Tyler, Jr..... 1184 

Letter from Harold R. Tyler, Jr. to Chairman Biden regarding the nomi¬ 
nation of Robert H. Bork to be Associate Justice of the Supreme Court 

of the United States, September 21, 1987. 1228 

Excerpts from William T. Coleman’s Memorandum on Robert Bork for 

the 1982 Report. 1258 

Letter from Harold R. Tyler, Jr, to Senator Metzenbaum, September 4, 

1987. 1255 

Letter from Robert B. Fiske, Jr. to then-Chairman Thurmond regarding 
the nomination of Antonin Scalia to be Associate Justice of the Su¬ 
preme Court of the United States, August 5, 1987. 1218 

Letter from Robert B. Fiske, Jr. to then-Chairman Thurmond regarding 
the nomination of William H. Rehnquist to be Associate Justice of the 


Minutes of meeting with Judge Bork (1987 nomination)..,. 1250 

“Standing Committee on the Federal Judiciary, How it Works”. 1235 

American Civil Liberties Union: 

“The Essential Judge Bork. A Report on the Testimony of Judge Robert 
H. Bork Before the Senate Judiciary Committee and an Analysis of His 

Constitutional Doctrine”, October 2, 1987. 4053 

Letter from Joan E. Bertin to Chairman Biden, September 29, 1987. 782 

Letter from Joan E. Bertin to Senator Simpson, September 23, 1987. 785 

Letter from Morton Halperin and Jerry Berman to the Editor, City 

Paper, September 28, 1987. 3155 

"Memorandum and Analysis: OCA W v. American Cyanamid Co." . 783 

Memorandum from Morton Halperin and Jerry Berman to Senator Simp¬ 
son, September 28, 1987 . 3154 

Press release, September 29, 1987. 781 


(XXVUI) 






























XXIX 


“Report on the Civil Liberties Record of Judge Robert H. Bork,” Septem- f ’ a ? e 

ber 9, 1987 . 1936, 4003 

Statement, October 5, 1987 . 3995 

American Jewish Congress: 

Statement of Marvin Frenkel, September 30,1987 . 4103 

American Medical Student Association: 

Statement of Drs. P. Preston Reynolds and Grace Heitsch, September 30, 

1987. 4130 

Americans for Democratic Action: 

Statement of Joseph Ranh, October 1987 . 4134 

Americans for Religious Liberty: 

Statement of Ed Doerr, September 30, 1987 . 4147 

Anthony, Robert A.: 

Essay, “Judge Bork’s Decisions in Which He Wrote No Opinion: Analysis 

of the Regulatory and Benefit Cases”. 1548 

Antitrust Law and Economics Review: 

Editorial, “Foreword: Antitrust, the Supreme Court, and the Bork 

Factor”. 4152 

Letter from Charles E. Mueller to Senator Kennedy, August 13, 1987. 4151 

Antitrust professors in opposition to the nomination: 

Letter to Chairman Biden, September 29, 1987 . 4166 

Areeda, Phillip: 

Testimony. 3313 

Asian American Bar Association of the Greater Bay Area: 

Letter from Hon Chew to Chairman Biden, September 15, 1987. 4170 

Association of the Bar of the City of New York: 

Prepared Statement. 2261 

Testimony of Robert Kaufman and Sheila Birnbaum. 2259 

Letter from John W. Bamum to Senator Simpson, September 22, 1987. 2269 

Letter from John W. Bamum to Robert Kaufman, September 22,1987. 2270 

Letter from Kenneth Volk to Senator Hatch, September 24, 1987 . 6106 

Letter from Kenneth Volk to Senator Simpson, September 24, 1987 . 2275 

Letter from Robert Kaufman to Chairman Biden, September 28,1987 . 2308 

Letter from Winthrop J. Allegaert to Chairman Biden, September 22, 

1987... 3973 

“New York Bar Association Split Over Stand on Bork,” The New York 

Times, undated. ..... 2295 

Paul J. Curran, “Bork’s Credentials Beyond Challenge; Opponents Use 

Political Standards,” New York Law Journal, September 28, 1987. 2296 

“Statement by Members of the Association of the Bar of the City of New 
York Repudiating the Unauthorized Action of its Executive Committee 
in Opposing the Nomination of Judge Robert H. Bork to the Supreme 

Court of the United States,” September 22, 1987 . 2271 

Attorneys in opposition to the nomination: 

Statement, October 2, 1987 . 4173 

Attorneys in Washington, D.C. in opposition to the nomination: 

Letter to Chairman Biden, October 5, 1987. 4178 

Attorneys who worked with Robert Bork in the Office of the Solicitor 
General: 

Letter to Chairman Biden, September 17, 1987. 2619 

Avins, Alfred: 

Statement. 4182 

Babcock, Barbara: 

Prepared Statement. 2348 

Testimony. 2344 

Baker, Donald: 

Prepared Statement. 3317 

Testimony. 3314 

“The Lawyer’s Bookshelf: Review of The Antitrust Paradox, ” New York 

Law Journal, July 7, 1978. 3288 

Baldwin, Donald: 

Prepared Statement. 2019 

Testimony. 2016 

Bamum, John W.: 

Letter to Robert Kaufman, September 22, 1987 . 2270 

Letter to Senator Simpson, September 22, 1987 . 2269 

Bator, Paul: 

Prepared Statement. 2912 

Testimony. 2910 









































XXX 


Becker, Mary: Page 

Letter to Chairmen Biden, September 28,1887. 4184 

Beil, Griffin; 

Teetimony... 2805 

Bellini, John J.: 

Prepared Statement... 2055 

Teetimony... 2052 

Belter, Leonard W.: 


Bennett, Robert: 

Prepared Statement... 2587 

Teetimony. 2685 

Ben-Veniate, Richard and Frampton, George Jr.: 

Stormwll: The Real Story of the Watergate Proeeeution (Simon and 

Schuater 1877), p. 142.*„... 689 

Berkeley Commiaeion on Peace and Juatice: 

Memorandum, with attachmente, September 80,1987 . 4185 

Berman, Jerry: 


Memorandum with Morton Halperin to Senator Slmpeon, September 28, 

1887 . 8164 

Bertin, Joan E.: 

Letter to Chairman Blden, September 29, 1987 ..... 782 

Letter to Senator Simpeon, September 28,1967... 785 

BeVier, Lillian Riemer: 

Prepared Statement. 2630 

Teetimony........ 2027 

Biden, Chairman Joeeph R.: 

Opening Statement. 94 

Prepared Statement. 99 

Cloeing Statement*... 860, 3894 

'* Ue judg* i flork. 112,127, 232, 241, 258, 264, 819, 405, 462, 593, 642, 664, 676, 

679, 696 

William Coleman. 962, 992,1001 

Barbara Jordan. 1053 

Andrew Young... 1078 

Burke Marshall........... 1099 

William French 8raith. 1136 

William Rogers. 1174 

Harold R. tyler, Jr. 1186,1227,1247 

Laurence H. Tribe. 1267 

Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard 

Stewart and Gary Born. 1371 

Panel of Lee Bollinger, William Styron and Robert Rauschenberg. 2006 

Honorable Warren E. Burger. 2098 

Panel of John Hope Franklin, William Leuchtenburg and Walter 

Dellinger. 2138 

Lloyd N. Cutler. 2176, 2181, 2188, 2199 

Panel of Chesterfield Smith, Robert W. Meserve and Robert Kauf¬ 
man. 2265 

Thomas Sowell... 2820 

Panel of Shirley M. Hufstedler, Barbara Babcock, Sylvia Law and 

Wendv Williams. 2332,2392 

Panel of Forrest McDonald, Daniel Meador, George Priest, John G. 

Simon and Ronald Rotunda. 2488 

Panel of Charles S. Rhyne, John C. Shepherd, Wallace D. Riley and 

James T. Bland, Jr... 2756 

Panel of Thomas Eagleton and Cass Sunstein ..... 2788, 2791 

Griffin Bell. 2808,2815 

Philip Kurland. 2849 

Panel of Herma Hill Kay, Kathleen Sullivan, David Richards. 3025 

Elliot Richardson. 3148, 3158, 3160 

Panel of Mervyn Dymally, John Conyers, Jr. and Walter E. 
Fauntroy. 3187 













































XXXI 


Panel of Terrance Sandalow, Steven Frankino, Maurice Holland, 
Ronald Davenport, Eugene Rostow, Thomas Morgan and Gerhard Pa * e 


Veto per ..... . .... v, oovo 

Panel of Phillip Areeda, Thomas Kauper, Donald I. Baker and James 

T. Halverson.. 8345 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky . 3442, 

3509, 3515, 3521 

Beverly LaHaye. 3552 

Vilma Martinez. 3621 

Rabbi William Handler. 3629, 3634 

Birnbaum, Sheila: 

Testimony. 2259 

Bittick, L. Cary: 

Prepared Statement. 2079 

Testimony. 2078 

Black, Charles L., Jr.: 

“A Note on Senatorial Consideration of Supreme Court Nominees,” 79 

Yale Law Journal 657 (1970). 1007 

Letter to The New York Times, July 26,1973 . 200 

Letter to Congressman Bob Eckhardt, July 30,1973 . 205 

“Mr. Nixon, the Tapes, and Common Sense,” The New York Times, 


Bland, James T., Jr.: 

Testimony. 2754 

Blecher, Maxwell M.: 

Statement. 3465 

B’nai B’rith Women: 

Statement, September 1987. 4204 

Bolev, John: 

Testimony. 3688 

Bollinger, Lee: 

Testimony. 1987 

Bolton, John: 

Letter to Judge Bork, September 28,1987 . 4208 

Bork, Judge Robert H.: 

Opening Statement. 103 

Prepared Statement. 106 

Testimony. 103, 193, 319, 445, 795 

Closing Statement. 855 

The Antitrust Paradox (1978), p. 407. 3520 

“Hie Crisis in Constitutional Theory. Back to the Future,” The Philadel¬ 
phia Society, April 3, 1987 . 653, 797 

Letter to Alexander Haig, July 31,1973. 199 

Letter to Alexander Haig, August 3,1973....... . . 212 

Letter to Chairman Biden regarding equal protection and right to priva¬ 
cy, October 1, 1987. 8896 

Letter to Chairman Biden regarding Vander Jagt v. O’Neill, with attach¬ 
ments, October 1,1987 ... 756, 3911 

Letter to Chairman Biden in response to Senator Weicker’s inquiry re¬ 
garding the religion clauses, October 1,1987. 3933 

Letter to Chairman Biden in response to Senator Leahy's inquiry regard¬ 
ing timely filings, with attachments, October 2, 1987 . 3937 

Letter to Chairman Biden in response to Senator Byrd’s inquiry regard¬ 
ing campaign finance, October 5,1987. 3948 

Letter to Chairman Biden in response to Senator Simon’s inquiry regard¬ 
ing the televising of Supreme Court proceedings, October 5, 1987 . 3954 

Letter to Chairman Biden regarding unfair advertising, October 5, 1987.... 3957 
Letter to Chairman Biden in response to Senator Metzenbaum’s inquiry 

regarding the Second Amendment, October 5,1987 . 3958 

Letter to Chairman Biden, September 28, 1987 . 4209 

Letter to Harold Tyler, September 28, 1987. 4210 

Letter to Judge Gordon, September 24, 1982. 146, 763, 8918 

Letter to Leonard Garment, August 3, 1973 . 215 

Letter to Senator Kennedy in response to the Senator’s November 16, 

1973 letter, undated... 223 

List of “Supreme Court Briefs Where Solicitor General Bork Supported 
the Rights of Minorities”. 354 










































XXXII 


List of Court Briefs Where Solicitor General Bork Supported Page 

the Rights of Women”... 357 


Memorandum to the Attorney General Regarding Pocket Vetoes, Janu¬ 
ary 26, 1976. 177 

Memorandum to Judge Robb, October 1, 1982 . 189, 764, 3919 

Memorandum to Judges Robb and Gordon, September 17, 1982 . 145, 762, 


“The Struggle Over the Role of the Court,” National Review, September 
17, 1982... 650 

Transcript of Department of Justice “Press Conference of Honorable 
Robert H. Bork, Acting Attorney General of the United Steteg,” with 

attachments, October 24, 1978. 595 

“Bork on Bork—The World According to Robert Bork,” September 17, 1987. 870 

Born, Gary: 

Testimony. 1884 

Essay, “Robert Bork's Civil Rights Record”. 1485 

Brigham Young University, J. Reuben Clark Law School: 

Letter from faculty members, September 28, 1987. 4211 

Broderick, Albert: 

“Blind Spot for Blacks—and Women”.......• 4212 

Brown, Charles: 

Prepared Statement. 8432 

Testimony. 3430 

Brown, Harold: 

“Controversy Over Bork’s Nomination No Surprise,” Massachusetts Law¬ 
yers Weekly, September 7, 1987. 4224 

Brownell, Herbert: 

Prepared Statement. 1281 

Testimony... 8838 

Telegram to Chairman Biden, Sc tember 20, 1987 . 1260, 3839 

Buchanan, Patrick: 

Memorandum to Alexander Hai ( August 3,1973. 202 

Burden, Ordway P.: 

Statement. 2085 

Burger, Honorable Warren E.: 

Testimony. 2096 

Business and Professional Women's l lubs/USA: 

Latter from Linda Colvard Doria , to Chairman Biden, October 2,1987. 4227 

Statement. 4229 

Byrd, Senator Robert C.; 

Opening Statement. 121 

r\ _a.: : , i i .v i oa 


Byse, Clark: 

letter to Senator Hatch, September 17, 1987... 2816 

Campbell, Thomas: 

Testimony......... 1387 

Essay, "Analysis of Judge Bork's Labor Opinions”... 1450 

Carlock, George Reed: 


Testimony. 2988 

Carrington, Frank: 

Prepared Statement...,,. 2089 

Testimony. 2068 

Carter, Honorable Jimmy; 


Casper, Gerhard: 

Prepared Statement. 3247 

Testimony... 3240 

Letter with Robert Mundheim to Chairman Biden, August 25, 1987. 3241 

Chicago Council of Lawyers: 

Letter to Senator Simon, September 11, 1987. 4251 

Report, September II, 1987. 4252 

Children's Defense Fund: 

Statement of Marian Wright Edelman, September 28, 1987. 4284 

Childs, Marjorie: 

Statement. 4281 















































XXXIII 


Christian, James M,: P 1 *** 

Letter to Chairman Biden, September 18, 1987. 4495 

Christofferson, Clyde: 

Letter to the Editor, The Wall Street Journal, September 26, 1987. 4287 

Cikins, Warren L: 

Letter to The Washington Post, July 28, 1987 . 310, 3017 

Citizens’ Advisory Committee, The District of Columhia Bar: 

Letter from Chauncey Fortt to Chairman Biden, October 2, 1987. 4292 

Citizens Against Bork: 

Tape transcription. 4294 

Citizens for Decency Through Law, Inc.: 

Statement. 4302 

Citizens for God and Country: 

Statement, September 21, 1987. 4312 

Clay, John: 

Testimony. 3688 

Clinton, Governor Bill: 

Statement. 4320 

Coleman, William T.: 

Prepared Statement. 874 

Testimony. 867 

Excerpts from Memorandum on Robert Bork for the 1982 ABA Report. 1258 

Collins, Cardiss: 

Statement. 4328 

Committee for a Fair Confirmation Process: 

“A Response to the Majority Report in the Senate Confirmation Proceed¬ 
ings of Judge Robert H. Bork,’ November 2, 1987. 4332 

Common Cause: 

“Why the United States Senate Should Not Consent to the Nomination of 
Judge Robert H. Bork to be a Justice of the Supreme Court,” Septem¬ 
ber 1987. 4457 

Community Free Democrats: 

Letter to Chairman Biden, September 30, 1987 . 4472 

Congressional Record: 

Excerpt on “Obtaining the White House Tapes," August 1, 1973. 205, 212 

Conover, Bev and Elton M., Jr.: 

Letter to committee members, September 29, 1987. 4473 

Conyers, Congressman John: 

Prepared Statement. 3168 

Testimony. 3166 

Curran, Paul J.: 

“Bork’s Credentials Beyond Challenge: Opponents Use Political Stand¬ 
ards,” New York Law Journal, September 28, 1987 . 2296 

Crown, Joseph: 

Letter to the Editor, The Mexico City News. August 28, 1987. 4479 

“The Supreme Court Crisis: The Bork Nomination,” August 30, 1987. 4480 

Cutler, Lloyd N.: 

Prepared Statement. 2161 

Testimony. 2158 

“Judge BOrk: Well Within the Mainstream,” The Washington Post , Sep¬ 
tember 16, 1987. 247, 2175 

"Opinion: The Battle Over Bork,” The American Lawyer, September 1987. 2173 

"Saving Bork from Both Friends and Enemies," The New York Times, 

July 16, 1987. 2171 

Danforth, Senator John: 

Prepared Statement. 19 

Testimony. 17 

Daskal, Dimitri G.: 

Prepared Statement. 3811 

Testimony. 3809 

Davenport, Ronald: 

Prepared Statement. 3251 

Testimony. 3250 

Davidow, Robert P.: 

Statement. 4483 

Dean, Rev. Kenneth: 

Prepared Statement. 2999 

Testimony. 2995 


88-379 0-89-2 






































XXXIV 


“Bork Thrives on Confrontation,” Rochester Times-Union, August 14, Pa « f 

1987. 4500 

DeConcini, Senator Dennis: 

Opening Statement. 51 

Prepared Statement. 54 

Questioning of: 

Honorable Gerald Ford. 11 

Judge Bork. 248, 391, 676, 722 

Laurence H. Tribe. 1315 

Panel of Carla A. Hills, Michael McConnell, Thomas Campbell, Rich¬ 
ard Stewart and Gary Born. 1398 

Honorable Warren E. Burger. 2107 

Panel of James Thompson, John P. Frank and Fred L. Foreman. 2228 

Thomas Sowell. 2312 

Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2404 

Panel of Thomas Eagleton and Cass Sunstein. 2800 

Griffin Bell. 2816 

Panel of Paul Bator, Henry Monaghan, Lillian Riemer BeVier, A. 


Panel of Herma Hill Kay, Kathleen Sullivan and David Richards. 3099 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky... 3524 

Beverly LaHaye. 3541 

Dellinger, Walter: 

Testimony. 2136 

Denominational Ministry Strategy: 

Letter from Rev. D. Douglas Roth and Rev. Daniel N. Solberg to Diana 

Huffman, September 15, 1987. 4491 

Letter from Rev. D. Douglas Roth, Rev. Daniel N. Solberg and Charles L. 

Honeywell to Diana Huffman, October 7, 1987. 4493 

District of Columbia Democratic State Committee: 

Letter from James M. Christian to Chairman Biden, September 18, 1987... 4495 

Resolution, September 18, 1987. 4496 

Dolan, Edith-Marie: 

Letter to Senator Hatch, September 28, 1987 . 2968 

Dole, Senator Bob: 

Prepared Statement. 14 

Testimony. 12 

Drach, Mitchell R.: 

Letter to Chairman Biden, October 2, 1987. 4498 

Dunn, James, et al.: 

Letter to Senator Simon. 4499 

Dymally, Congressman Mervyn: 

Prepared Statement. 3163 

Testimony. 3162 

Eagleton, Senator Thomas: 

Prepared Statement. 2762 

Testimony. 2760 

Equal Rights Advocates, with Federation of Women Lawyers Judicial Screen¬ 
ing Panel, Women’s Legal Defense Fund, NOW Legal Defense and Educa¬ 
tion Fund: 

Statement, October 19, 1987. 4531 

Executive Leadership Council: 

Statement, October 9, 1987. 4501 

Falsgraf, William W.: 

Letter to Chairman Biden, September 18, 1987. 2737 

Fauntroy, Delegate Walter E.: 

Prepared Statement. 3179 

Testimony. 3175 

Federal regulations (OSHA) relating to occupational exposure to lead, Novem¬ 
ber 14 and 21, 1978 . 4510 

Federal regulations relating to the Watergate Special Prosecution Force: 

Creation of WSPF, May 31, 1973. 3125 

Abolition of WSPF, October 23, 1973. 3210 

Federation of Women Lawyers Judicial Screening Panel, with Women's Legal 
Defense Fund, NOW Legal Defense and Education Fund, Equal Rights 
Advocst^s* 

Statement, October 19, 1987. 4531 










































XXXV 


Feeney, Floyd and Mahoney, Barry: Pa *® 

Letter to Chairman Biden, October 5, 1987. 4552 

“The Lawfulness of Robert Bork’s Firing of the Watergate Special Pros¬ 
ecutor,” October 6, 1987. 4654 

Feinberg, Margo: 

Letter to Chairman Biden regarding views of local California bar associa¬ 
tions, September 22,1987 . 4592 

Fellers, James D.: 

Letter to John C. Shepherd, September 18, 1987 . 2741 

Finley, Lucinda: 

Telegram to Chairman Biden, September 24, 1987 . 2977 

Fish, Congressman Hamilton: 

Prepared Statement. 24 

Testimony. 21 

Fiske, Robert: 

Testimony. 1184 

Letter to then-Chairman Thurmond regarding the nomination of Antonin 
Scalia to be Associate Justice of the Supreme Court of the United 

States, August 5, 1987. 1218 

Letter to then-Chairman Thurmond regarding the nomination of William 
H. Rehnquist to be Associate Justice of the Supreme Court of the 

United States, July 29,1987. 1223 

Fife, Owen: 

Prepared Statement. 2495 

Testimony. 2491 

Flynn, John J.: 

Statement. 4595 

Foer, Albert A.: 

Prepared Statement. 3826 

Testimony. 3824 

Ford, Honorable Herald: 

Prepared Statement. 6 

Testimony. 3 

Foreman, Fred: 

Prepared Statement. 2222 

Testimony. 2221 

Foster, Byron C.: 

Letter to Chairman Biden, September 21, 1987. 4624 

Frampton, George: 

Prepared Statement. 3197 

Testimony. 3194 

Stonewall : The Real Story of the Watergate Prosecution, with Richard 

Ben-Veniste (Simon and Schuster 1977), p. 142. 639 

Frank, John: 

Prepared Statement. 2208 

Testimony. 2204 

Frankino, Steven: 

Prepared Statement. 3254 

Testimony. 3252 

Franklin, John Hope: 

Prepared Statement. 2122 

Testimony.1. 2118 

Freedman, Monroe H.: 

Letter to Chairman Biden, September 29, 1987. 4626 

Fuesel, Robert: 

Prepared Statement. 2049 

Testimony. 2047 

Full committee employees staffing the hearing, list of. 3894 

Gewirtz, Paul: 

Prepared Statement. 2558 

Testimony. 2555 

“Senators Should Use Activist Approach in Judging Nominees,” Legal 

Tonies, August 10, 1987 . 2591 

Gilligan, Carol: 

Telegram to Chairman Biden, September 27, 1987 . 2978 

Glendon, Mary Ann: 

Essay, “Tne Probable Significance of the Bork Appointment for Issues of 
Particular Concern to Women”. 1440 









































XXXVI 


Gold, Laurence: p «b« 

Letter to Senator Metzenbaum, September 28,1987. 3090 

Goldstein, Joseph: 

“That Was the Real Bork Who Testified," The New York Times, Septem¬ 
ber 27, 1987. 4627 

Gordon, Judge James F.: 

Affidavit, October 2, 1987 . 4628 

Letter to Chairman Biden, August 24, 1987. 136, 808 

Letter to Judge Bork, December 17, 1982. 143, 768, 3923 

Grano, Joseph D.: 

Essay, ‘’The ‘Response Prepared to White House Analysis of Judge Bork’s 

Record’: A Critical Appraisal”. 1596 

Grassley, Senator Charles E.: 

Opening Statement. 59 

Prepared Statement. 63 

Questioning of: 

Judge Bork. 259, 264, 400, 406, 689 

William Coleman. 984 

Burke Marshall. 1103 

William French Smith. 1133 

Nicholas deB. Katzenbach. 1154 

Harold R. Tyler, Jr. 1210 

Laurence H. Tribe. 1318 

Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard 

Stewart and Gary Bom. 1401 

Honorable Warren E. Burger. 2108 

Lloyd N. Cutler. 2191 

Panel of Chesterfield Smith, Robert W. Meserve and Robert Kauf¬ 
man. 2302 

Panel of Shirley Hufstedter, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2402 

Panel of Herma Hill Kay, Kathleen Sullivan, and David Richards. 3097 

Elliot Richardson. 3151 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky. 3523, 3529 

Vilma Martinez. 3622 

Rabbi William Handler. 3638 

Herbert Brownell. 3842 

Grey, Thomas: 

Prepared Statement. 2515 

Testimony. 2514 

Haberman, Joshua O.: 

Letter to the Editor, The Washington Post, August 6, 1987 . 311, 3018 

Haig, Alexander M.: 

Memorandum to President Nixon, August 2, 1973. 198 

Memorandum to President Nixon, August 8, 1973. 204 

Halperin, Morton: 

Letter with Jerry Berman to City Paper, September 28, 1987 . 3155 

Memorandum with Jerry Berman to Senator Simpson, September 28, 

1987. 3154 

Halverson, James T.: 

Prepared Statement. 3331 

Testimony.. 3328 

Letter with other previous chairmen of the Section of Antitrust Law of 
the American Bar Association to The Washington Post, August 7, 1987 

. 388,2276 

Hampton, Ronald: 

Prepared Statement. 3862 

Testimony. 3860 

Handler, Rabbi William: 

Testimony. 3626 

Materials submitted. 3642 

Harris Survey, “Public Opposes Bork Nomination by 59-27%,” September 28, 

1987. 3547 

Harrison, John: 

Declaration regarding Wander Jagt v. O’Neill, September 28, 1987. 772, 3927 

Hatch, Senator Ornn G.: 

Opening Statement. 35 

Prepared Statement. 39 

Closing Statement. 857 
















































XXXVII 


Questioning of: Pa « c 

Judge Bork. 176, 345, 471, 594, 643, 845 

William Coleman. 955,964 

Burke Marshall. 1102 

Edward Levi. 1120 

Nicholas Katzenbach. 1150 

William Rogers. 1171 

Harold R. Tyler, Jr. 1196 

Laurence H. Tribe. 1303 

Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard 

Stewart and Gary Bom. 1373 

Honorable Warren E. Burger. 2103 

Panel of John Hope Franklin, William Leuchtenburg and Walter 

Dellinger. 2141 

Lloyd N. Cutler. 2182 

Panel of Chesterfield Smith, Robert W. Meserve and Robert Kauf¬ 
man. 2292 

Thomas Sowell. 2317 

Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2395 

Panel of Robert Bennett, Paul Gewirtz, Owen Fiss, Thomas Grey and 

Judith Resnick. 2615 

Panel of Thomas Eagleton and Cass Sunstein. 2797 

Griffin Bell... 2813 

Philip Kurland. 2855 

Panel of Paul Bator, Henry Monaghan, Lillian Riemer BeVier, A. 


Elliot Richardson. 3133 

Panel of Henry Ruth and George Frampton. 3207, 3213 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky. 3534 


List of “Substantive Pro-Minority and Pro-Women Appellate Court Deci¬ 
sions by Judge Bork”, with copies of decisions. 472 

List of "Supreme Court Briefs Where Solicitor General Bork Supported 

the Righto of Women. 583 

List of ‘‘Supreme Court Briefs Where Solicitor General Bork Supported 

the Righto of Minorities. 584 

List of “Unanimous Pro-Labor Cases”. 846 

Memorandum, “67 Flaws of the Bork Ad,” submitted by Senator Hatch. 3135 

“Response to the Statement of John P. Frank”. 3554 

Statement regarding Katzenbach v. Morgan . 1375 

Hazard, Geoffrey C., Jr.: 

Letter to Chairman Biden, September 16, 1987 . 4633 

Hearings Before the Committee on the Judiciary, "Nomination of Elliot Rich¬ 
ardson to be Attorney General,” 93rd Cong., 1st Sess., May 9, 10, 14, 15, 21 

and 22,1973, p. 185. 3128 

Hearings Before the Committee on the Judiciary, “The Selection and Confir¬ 
mation of Federal Judges,” 97th Cong., 2nd Sess., January 27, February 12, 

26 and March 11, 24, 31, 1982, pp. 2091-2092 . 3531 

Heflin, Senator Howell: 

Opening Statement. 77 

Prepared Statement. 80 

Closing Statement. 3893 

Questioning of: 

Judge Bork. 288, 445, 795 

William Coleman. 983 

Nicholas deB. Katzenbach. 1151 

Harold R. Tyler, Jr. 1208 

Laurence H. Tribe. 1328 

Honorable Warren E. Burger. 2113 

Lloyd N. Cutler. 2192 

Thomas Sowell. 2325 

Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2387 

Panel of Forrest McDonald, Daniel Meador, George Priest, John 

Simon and Ronald Rotunda. 2478 

Panel of Thomas Eagleton and Cass Sunstein. 2796 



















































XXXVIII 


Page 

Griffin Bell. 2824 

Panel of Paul Bator, Henry Monaghan, Lillian Riemer BeVier, A. 

Leo Levin and Dallin H. Oaks. 2954 

Panel of Henna Hill Kay, Kathleen Sullivan and David Richards. 3108 

Elliot Richardson. 3132 

Panel of Robert Abrams. Charles Brown and Robert Pitofsky. 3535 

Vilma Martinez. 3618 

Panel of John Clay, John C. Roberts and John Boley. 3790 

Hills, Carla: 

Prepared Statement. 1350 

Testimony. 1347 

“Take the Trouble To Understand”. 1415 

Hispanic National Bar Association: 

Statement of John Martinez. 4639 

Holland, Maurice: 

Prepared Statement. 3261 

Testimony. 3257 

Human Life Bill. Report of the Subcommittee on Separation of Powers, S.158, 

97th Cong., 1st Sess. (1981). 1376 

Hufstedler, Shirley M .: 

Prepared Statement. 2336 

Testimony. 2331 

Letter to Senator Kennedy, October 3, 1987. 4648 

Letter to Senator Kennedy, October 6, 1987 . 4655 

Hughes, John L.: 

Prepared Statement. 2063 

Testimony. 2061 

Humphrey, Senator Gordon J.: 

Opening Statement. 85 

Prepared Statement. 89 

Questioning of: 

Judge Bork. 296, 426, 427, 453, 736 

William Coleman. 993 

Barbara Jordan. 1051,1064 

Andrew Young. 1083 

Burke Marshall. 1109 

William French Smith. 1140 

William Rogers. 1180 

Harold R. Tyler, Jr. 1213 

Laurence H. Tribe. 1330 

Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard 

Stewart and Gary Born. 1405 

Panel of Lee Bollinger, William Styron and Robert Rauschenberg. 2011 

Honorable Warren E. Burger. 2114 

Panel of John Hope Franklin, William Leuchtenburg and Walter 

Dellinger. 2156 

Lloyd N. Cutler. 2197 

Panel of James Thompson, John Frank and Fred Foreman. 2236 

Panel of Chesterfield Smith, Robert Meserve and Robert Kaufman. 2288 

Thomas Sowell. 2327 

Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2409 

Panel of Forrest McDonald, Daniel Meador, George Priest, John 

Simon and Ronald Rotunda. 2486 

Panel of Robert Bennett, Paul Gewirtz, Owen Fiss, Thomas Grey and 

Judith Resnick. 2719 

Griffin Bell. 2826 

Philip Kurland. 2857 

Panel of Richard Thornburgh, A. Randolph Raymond, Stuart A. 

Smith and Jewel S. LaFontant. 2901 

Panel of Paul Bator, Henry Monaghan, Lillian Riemer BeVier, A. 

Leo Levin and Dallin H. Oaks. 2973 

Rev. Kenneth Dean. 3015 

Panel of Herraa Hill Kay, Kathleen Sullivan and David Richards. 3106 

Elliot Richardson. 3157,3158 

Panel of Henry Ruth and George Frampton. 3237 





















































XXXIX 


Panel of Terrance Sandalow, Steven Frankino, Maurice Holland, 
Ronald Davenport, Eugene Rostow, Thomas Morgan and Gerhard Pa * e 

Casper. 3306 

Beverly LaHaye. 3542 

Rabbi William Handler. 3639 

"Response to Submission by John P. Frank”. 3876 

“Statistics Concerning Judge Bork’s Record on Appeal in Cases Where He 

Wrote or Joined the Majority Opinion”. 737 

“Statistics Concerning Subsequent History with Respect to Judge Bork’s 

Dissenting Opinions". 740 

Innis, Roy: 

Prepared Statement. 3794 

Testimony. 3792 

Janofsky, Leonard S.: 

Letter to Chairman Biden, September 18, 1987 . 2739 

Johnson, Harold: 

Prepared Statement. 3865 

Testimony. 3863 

Jordan, Barbara: 

Testimony. 1004 

Kalven, Jamie: 

“Bork v. The First,” The Nation, September 19, 1987. 3507 

Kamenar, Paul D. and Popeo, David J.: 

"The Questionable Role of the ABA in the Judicial Selection Process”. 5898 

Katzenbach, Nicholas deB.: 

Testimony. 1146 

Kaufman, Robert: 

Prepared Statement. 2261 

Testimony. 2259 

Letter to Chairman Biden, September 28, 1987 . 2308 

Kauper, Thomas: 

Prepared Statement. 3340 

Testimony. 3338 

Kay, Herma Hill: 

Prepared Statement. 3027 

Testimony. 3025 

Kennedy, Senator Edward M.: 

Opening Statement. 32 

Closing Statement. 3873 

Questioning of: 

Judge Bork. 149, 235, 336, 646, 666, 842 

William Coleman. 999 

Barbara Jordan. 1046 

Andrew Young. 1078 

Laurence H. Tribe. 1300 

Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard 

Stewart and Gary Born. 1393 

Panel of Lee Bollinger, William Styron and Robert Rauschenberg. 2003 

Honorable Warren E, Burger. 2103 

Panel of John Hope Franklin, William Leuchtenburg and Walter 

Dellinger. 2140 

Lloyd N. Cutler. 2178 

Panel of Chesterfield Smith, Robert Meserve and Robert Kaufman. 2281 

Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2399 

Panel of Thomas Eagleton and Cass Sunstein. 2791 

Griffin Bell. 2811 

Philip Kurland. 2850 

Panel of Herma Hill Kay, Kathleen Sullivan and David Richards. 3082 

Elliot Richardson. 3121 

Panel of Mervyn Dymally, John Conyers Jr, and Walter E. Fauntroy . 3188 

Panel of Henry Ruth and George Frampton. 3204, 3209 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky. 3513 

Vilma Martinez. 3615 

“Bork on Bork—The World According to Robert Bork,” September 17, 

1987. 370 

Letter to Robert Bork, November 16, 1973. 218 
















































XL 

Kliesmet, Robert B.: Page 

Prepared Statement. 3853 

Testimony. 3850 

Krane, Howard: 

Prepared Statement. 2981 

Testimony. 2980 

Kurland, Philip: 

Prepared Statement. 2835 

Testimony. 2831 

Lacovara, Philip: 

Statement, September 1987. 3214 

LaFontant, Jewel S.: 

Prepared Statement. 2887 

Testimony. 2884 

Resume. 2902 

LaHaye, Beverly: 

Prepared Statement. 3539 

Testimony. 3537 

Larkin, Paul: 


Law, Sylvia: 

Prepared Statement. 2358 

Testimony. 2354 

Law deans, letter from 32 opposing Judge Bork’s confirmation as Associate 
Justice of the Supreme Court to Chairman Biden and Senator Thurmond, 

September 22, 1987... 1342 

Law professors, letter from 100 opposing Judge Bork’s confirmation as Associ¬ 
ate Justice of the Supreme Court to Chairman Biden and Senator Thur¬ 
mond, September 22, 1987. 1335 

Law professors, list of 100 favoring the confirmation of Robert H, Bork as an 

Associate Justice of the Supreme Court. 408 

Law professors who signed letters in opposition to Robert Bork’s nomination 

to the Supreme Court, list of. 3355 

Law schools at which law professors signed letters in opposition to Robert 

Bork’s nomination to the Supreme Court, list of. 3351 

Lawson, Gary: 

Essay, “Judge Bork, Separation of Powers and Special Prosecutor Bills”.... 15(56 
Lawyers’ Committee for Civil Rights Under Law: 

Letter from Conrad K. Harper and Stuart J. Land to Chairman Biden, 

September 14, 1987. 4692 

Letter from Conrad K. Harper and Stuart J. Land to Chairman Biden, 

September 30, 1987. 4661 

“Memorandum on the Nomination of Judge Robert H. Bork as an Associ¬ 
ate Justice to the United States Supreme Court”. 4693 

"On the Nomination of Judge Robert H. Bork as an Associate Justice of 

the United States Supreme Court”. 4680 

Statement of Conrad K. Harper, for Individual Members of of the Law¬ 
yers' Committee for Civil Rights Under Law. and Individual Members 

of Local Lawyers' Committees, September 29, 1987. 4663 

Lawyers for the Judiciary. 3692 

Statement. 3692 

Leahy, Senator Patrick J.: 

Opening Statement. 66 

Prepared Statement. 70 

Questioning of: 

Judge Bork. 267, 416, 427, 746 

Andrew Young. 1084 

William French Smith. 1132 

Nicholas deB. Katzenbach. 1149 

Harold R. Tyler, Jr. 1193 

Laurence H. Tribe. 1321 

Panel of Carla Hills, Michael McConnell, Thomas Campbell. Richard 

Stewart and Gary Born. 1408 

Panel of Lee Bollinger, William Styron and Robert Rauschenberg. 2013 

Honorable Warren E. Bnrger. 2110 

Panel of John Hope Franklin, William Leuchtenberg and Walter 

Dellinger. 2145 

Lloyd N. Cutler. 2188 











































XLI 

Page 

Panel of James Thompson, John Frank and Fred Foreman... 2234 

Panel of Chesterfield Smith, Robert Meserve and Robert Kaufman. 2291 

Thomas Sowell. 2316 

Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2407 

Panel of Forrest McDonald, Daniel Meador, George Priest, John 

Simon and Ronald Rotunda. 2485 

Panel of Thomas Eagleton and Cass Sunstein. 2794 

Griffin Bell. 2820 

Panel of Paul Bator, Henry Monaghan, Lillian Riemer BeVier, A. 

Leo Levin and Dallin H. Oaks. 2951 

Panel of Herma Hill Kay, Kathleen Sullivan and David Richards. 3104 

Elliot Richardson. 3149 

Panel of Henry Ruth and George Frampton. 3232, 3238 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky. 3528 

Rabbi William Handler. 3631 

Leadership Conference on Civil Rights: 

“The Bork Record on Labor”... 4752 

“Bork v. Bork,” with supplement..... 4745 

Statement, September 17,1987. 4743 

Statement of Benjamin Hooks, October 1987. 4739 

“Summary of Some of the Major Arguments of the Nomination of Robert 

Bork”. 4757 

Lebron, Michael: 

Letter to Diana Huffman, September 19, 1987. 4761 

Lee, Joseph D.: 

Affidavit regarding Vander Jagt v. O’Neill, with attachments, October 2, 

1987. 4762 

Leibe, Diane C.: 

Letter to committee members, undated. 2305 

Letter to Senator Grassley, September 18, 1987 . 2304 

Leuchtenburg, William: 

Prepared Statement. 2132 

Testimony. 2128 

Levi, Edward: 

Prepared Statement. 1115 

Testimony. 1111 

T pvi r\ A I prt* 

Prepared Statement. 2936 

Testimony. 2935 

Licht, Richard A.: 

"Brief in Opposition to the Nomination of Judge Bork to the Supreme 

Court”. 4776 

Statement. 4771 

Lipshutz, Robert J.: 

Letter to Chairman Biden, September 29, 1987 . 4791 

List of majority and minority staff members who assisted with the hearings.... 3894 
Luff, Ruth: 


Marcus, Paul: 

Letter to Senator DeConcini, September 17, 1987 . 725 

“UA’s Dean Marcus Calls for Bork’s Confirmation,” Arizona Daily Star, 

August 29,1987 . 726 

Marshall, Burke: 

Prepared Statement. 1090 

Testimony... 1087 

Marshall, Thurgood: 

Passage from the hearing on the nomination of Justice Marshall, 1967. 744 

Martinez, Vilma: 

Prepared Statement. 3580 

Testimony. 3576 

Maryland Association of Equal Opportunity Personnel: 

Statement of Yvonne A. Edwards. 4792 

Mahoney, Barry and Feeney, Floyd: 

Letter to Chairman Biden, October 5, 1987. 4552 

“The Lawfulness of Robert Bork’s Firing of the Watergate Special Pros¬ 
ecutor,” October 6, 1987. 4554 












































XLII 


McAninch, William S.: pa * e 

Letter to Chairman Biden, September 21, 1987. 4796 

McConnell, Michael: 

Prepared Statement. 1358 

Testimony. 1354 

Essay, “The First Amendment Jurisprudence of Judge Robert Boric”. 1419 

McDonald, Forrest: 

Prepared Statement. 2415 

Testimony. 2412 

McLaughlin, Francis X.: 

Statement, with attachments. 4797 

Meador, Daniel: 

Prepared Statement. 2423 

Testimony. 2420 

Meltzer, Bernard D.: 

Essay, “The ACLU’s Evaluation of Judge Bork’s Employment Decisions”.. 1579 
Mental Health Law Project: 

“Judge Bork and the Rights of Disabled People”. 4807 

Letter from Leonard S. Rubenstein to Diana Huffman, October 2,1967. 4818 

Letter from Norman S. Rosenberg to Chairman Biden, September 15, 

1987 4806 

Statement of Leonard S. Rubenstein, October 5,1987. 4822 

Meserve, Robert: 

Prepared Statement... 2248 

Testimony. 2244 

Metzenbaum, Senator Howard M.: 

Opening Statement. 44 

Prepared Statement. 45 

Questioning of: 

JudgeBork. 193, 235, 360, 467, 678 

William Coleman. 963, 966 

Barbara Jordan. 1049 

Andrew Young. 1082 

Burke Marshall... 1101 

William French Smith... 1135 

William Rogers. 1172,1175 

Harold R Tyler, Jr. 1201 

Laurence H. Tribe. 1307 

Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard 

Stewart and Gary Born.i. 1402 

Panel of Lee Bollinger, William Styron and Robert Rauschenberg. 2004 

Honorable Warren E. Burger. 2105 

Lloyd N. Cutler. 2184 

Panel of James Thompson, John Frank and Fred Foreman. 2226 

Panel of Chesterfield Smith, Robert Meserve and Robert Kaufman 2286 

Panel of Herma Hill Kay, Kathleen Sullivan and David Richards. 8088 

Panel of Henry Ruth and George Frampton. 8211 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky. 3521, 3523 

Roy Innis. 3804, 3806 

Panel of Harold Johnson, Robert Kliesmet and Ronald Hampton. 3871 

Letter to Harold Tyler, August 26,1987. 1256 

Mexican American Legal Defense and Educational Fund: 

Statement of Antonia Hernandez, with attachments, October 5, 1987. 4838 

Minnesota Coalition of 372,000 to Stop Bork: 

letter from Rev. Lee S. Wiskochil to Chairman Biden, with attachments, 

September 22, 1987 . 4852 

Minnick, John B.: 

Letter to Chairman Biden, September 22, 1987 . 4885 

Letter to Senator Hatch, with attachments, August 19, 1987 . 4887 

Letter to Senator Hatch, September 22, 1987 . 4886 

Minority Business Enterprise Legal Defense and Education Fund, Inc.: 

Statement. 4896 

Monaghan, Henry: 

Testimony. 2926 

Morgan, Thomas D.: 

Prepared Statement. 3273 

Testimony. 3269 
















































XLIII 


Morris, Earl F.: p »« e 

Letter to Chairman Biden, September 18,1987 . 2740 

Morrison, Alan B.: 

Statement “Concerning Nader v. Bork and the Nomination of Judge 
Robert H. Bork to be Associate Justice of the Supreme Court of the 

United States,” October 5, 1987 . 5941 

Mundheim, Robert H.: 

Letter with Gerhard Casper to Chairman Biden, August 25, 1987. 3241 

NAACP Legal Defense and Educational Fund, Inc.: 

“Bork v. Bork. A Comparison of Judge Bork’s Confirmation Testimony 
with His Previous Speches and Articles,” with People for the American 

Way Action Fund, September 1987 . 4908 

‘‘Judge Bork’s Views Regarding Supreme Court Constitutional Prece¬ 
dents,” with People for the American Way Action Fund, September 

1987 . 5742 

“Most Recent Date of Bork Criticism of Supreme Court Constitutional 

Precedents,” with attachments, October 5, 1987. 4974 

Statement of James M. Nabrit, III, October 8, 1987 . 5055 

Statement of Julius L. Chambers, October 5, 1987... 5042 

Nader, Ralph: 

Letter to Chairman Biden, with attachments, October 12, 1987. 5059 

Nation Institute: 

“The Bork Report. The Supreme Court Watch Project’s Analysis of the 

Record of Judge Robert H. Bork”... 5084 

Letter from Emily Sack to Chairman Biden, October 1, 1987 . 5083 

National Abortion Rights Action League: 

"Bork as ‘Confirmation-day Moderate,’ ” September 16,1987. 5307 

“The Opposition to Bork: The Case for Women’s Liberty”. 5266 

National Association for the Advancement of Colored People: 

Howard University School of Law, letter from faculty members to Chair¬ 
man Biden and Senator Thurmond, September 17, 1987 . 5511 

J. Clay Smith, Jr., “A Response to Professor Robert Bork’s ‘Giving Mean¬ 
ing to the Constitution: Competing Visions of Judicial Review, ” June 

12,1987 . 5482 

J. Clay Smith, Jr., “Toward Pure Legal Existence: Blacks and the Consti¬ 
tution,” June 18, 1987 . 5490 

Nathaniel R. Jones, “The Desegregation of Urban Schools Thirty Years 

A C,_-1QCA KOOQ 


and Confirmation Process of Justices to the Supreme Court of the 
United States,” September 1987. 5382 

Statement of Althea T.L. Simmons, September 1987. 6309 

National Association of Criminal Defense Lawyers: 

Statement of Joseph Tydings. 5514 

National Association of Evangelicals: 

Statement of Robert P. Dugan, Jr., October 2, 1987. 5526 

National Association of Federal Investigators: 

Letter from Alan Nelson to Chairman Biden. 2089 

Resolution. . . 2090 

N&tionBl R flr iVssociBtion f 

Letter from Walter L. Sutton, Jr. to Chairman Biden, September 29, 1987. 5532 
National Black Caucus of State Legislators: 

Statement of David P. Richardson, Jr., September 1987. 5533 

National Coalition for Women and Girls in Education: 

Letter from Jill Miller to Chairman Biden, September 25,1987 . 5538 

National Conference of Black Lawyers and Medgar Evers College for Law and 
Social Justice: 

Statement. 5541 

National Council of the Churches of Christ: 

letter from Bishop Philip R. Cousin and Dr. Arie R. Brouwer to Chair¬ 
man Biden, October 1, 1987 . 5549 

Letter from James A. Hamilton to Chairman Biden, October 1, 1987. 5550 

"Resolution Opposing the Nomination of Judge Robert H. Bork to the 

Supreme Court of the United States”. 5551 

National Conference of Women’s Bar Associations: 

Statement, September 17, 1987. 5571 

National Council of Jewish Women: 

Statement. 5575 


































XLIV 


National Education Association: p* 

Letter from Kenneth F. Melley to Chairman Biden, October 1, 1987. 5577 

Statement, October 1, 1987. 5578 

National Family Planning and Reproductive Health Association, Inc.: 

Statement of Scott R. Swirling, October 5, 1987 . 5585 

National Lawyers Guild: 

Statement of Haywood Burns, with attachment. 5588 

National Press, Inc.: 

Statement of Joe D. Joseph, October 31, 1987 . 5600 

National Urban League, Inc.: 

Statement of Douglas G. Glasgow, October 5,1987... 5605 

National Women's Law Center: 

Statement of Marcia D. Greenberger, Suzanne E. Meeker and Ellen J. 

Vargyas, with attachment, October 5, 1987. 5611 

National Women's Political Caucus: 

Statement of Irene Natividad, October 5, 1987. 5663 

Natural Resources Defense Council: 

Letter from Adrian W. DeWind to Chairman Biden, September 22, 1987.... 5670 

Memorandum, September 22,1987 . 5673 

“New York Bar Association Split Over Stand on Bork,” The New York Times, 

undated. 2295 

New York State Defenders Association, Inc.: 

Letter from Wilfred R. O’Connor to Chairman Biden, September 16, 1987 . 5683 
New York Times, The'. 

Black, Charles L., Jr., Letter to the Editor, July 25, 1973... 200 

Black, Charles L., Jr., “Mr. Nixon, the Tapes and Common Sense,” undat¬ 
ed . 203, 205 

Cutler, Lloyd N., “Saving Bork from Both Friends and Enemies,” July 16, 

1987. 2171 

Goldstein, Joseph, “That Was the Real Bork Who Testified,” September 

27, 1987 . 4627 

“New York Bar Association Split Over Stand on Bork,” undated. 2295 

“Nixon and Bork Reported Split on Prosecutor’s Role,” October 29, 1973... 636 

“Nixon Plan on Prosecutor is Opposed by Mansfield,” October 28, 1973. 634 

Rostow, Eugene, Letter to the Editor, August 3, 1987, (published and 

unpublished!. 3287 

Smith, Stuart, “Bork Deserves to be a Justice,” September 16, 1987. 455 

“Nixon and Bork Reported Split on Prosecutor’s Role, The New York Times, 

October 29, 1973. 636 

“Nixon Plan on Prosecutor is Opposed by Mansfield,” The New York Times, 

October 28, 1973. 634 

Nolan, Robert L.: 

Letter to Chairman Biden, September 21, 1987. 5684 

NOW Legal Defense and Education Fund, with Federation of Women Law¬ 
yers Judicial Screening Panel, Women’s Legal Defense Fund, Equal Rights 
Advocates: 

Statement, October 19, 1987. 4531 

Oaks, Dallin: 

Prepared Statement. 2944 

Testimony. 2941 

Oil, Chemical and Atomic Workers International Union v. American Cyana- 
mid Co.: 

AFL-CIO, “Memorandum on Judge Bork’s Opinion and Testimony Con¬ 
cerning the American Cyanamid Case”. 3091 

American Civil Liberties Union, Press Release, September 29, 1987. 781 

American Civil Liberties Union, “Memorandum and Analysis: OCAW v. 

American Cyanamid Co.” . 783 

Bertin, Joan E., Letter to Chairman Biden, September 29, 1987 . 782 

Bertin, Joan E., Letter to Senator Simpson, September 23, 1987 . 785 

Federal regulations (OSHA) relating to occupational exposure to lead, 

November 14 and 21, 1978. 4510 

Riggs, Betty, Letter to Senators, September 28, 1987 . 788 

Simpson, Honorable Alan, Letter to Joan E. Bertin, September 30,1987.... 779 

Olmstead v. United States, 277 U.S. 438 (1928). 1015 

Patriotic Majority: 

"The Case of Bork Versus the American Revolution”. 5685 

Pearce, Jack: 

Letter to Chairman Biden, August 17, 1987. 5688 





































XLV 


“Recommendation that Judge Robert Bork Not be Confirmed as an Asso¬ 
ciate Justice of the United States Supreme Court on the Basis of Pa « e 
Deficiencies in His Approach to Interpretation of the Antitrust Laws”... 5692 
People for the American Way Action Fund: 

“Bork v. Bork. A Comparison of Judge Bork’s Confirmation Testimony 
with His Previous Speeches and Articles,” with the NAACP Legal 

Defense and Educational Fund, Inc., September 1987. 4908 

“Judge Bork’s Views Regarding Supreme Court Constitutional Prece¬ 
dent,” with the NAACP Legal Defense and Educational Fund, Inc., 

September 1987. 5742 

Statement of John R. Buchanan, October 1987. 5701 

Peterson, Henry E.: 

Statement, September 22, 1987. 3222 

Physicians Forum, Inc.: 

Statement, September 14, 1987. 5888 

Pilpel, Harriet F.: 

Letter to Chairman Biden, September 16, 1987. 5892 

Pitofsky, Robert: 

Prepared Statement. 3443 

Testimony. 3441 

Planned Parenthood Federation of America: 

Statement of Faye Wattleton, October 5,1987. 5893 

Polsby, Daniel D.: 

Essay, “Judge Bork and Standing”. 1470 

Popeo, Daniel J. and Kamenar, Paul D.: 

“The Questionable Role of the ABA in the Judicial Selection Process”. 5898 

Priest, George: 

Prepared Statement. 2439 

Testimony. 2435 

Public Citizen Litigation Group: 

“Judge Bork’s Civil Rights Record on the Court of Appeals”. 5931 

The Judicial Record of Judge Robert Bork, August 1987. 1725 

Letter from Ralph Nader to Chairman Biden, with attachments, October 

12, 1987 . 5059 

Statement, October 5, 1987 . 5913 

“Statement of Alan B. Morrison Concerning Nader v. Bork, and the 
Nomination of Judge Robert H. Bork to be Associate Justice of the 

Supreme Court of the United States,” October 5, 1987. 5941 

“Statistics Lie: Reponse to Statistics Frequently Cited by the White 

House to Support Nomination of Judge Bork”. 5939 

Puerto Rican Legal Defense and Educational Fund, Inc.: 

Statement, October 2, 1987 . 6003 

Randolph, A. Raymond: 

Prepared Statement. 2870 

Testimony. 2868 

Rauschenberg, Robert: 

Prepared Statement. 2000 

Testimony. 1998 

Report of the Committee. 6180 

Report of the Subcommittee on Separation of Powers on the Human Life bill, 

S. 158, 97th Cong., let Sees. (1981). 1376 

Resnick, Judith: 

Prepared Statement. 2532 

Testimony. 2528 

“Response Prepared to White House Analysis of Judge Bork’s Record,” Sep¬ 
tember 3,1987. 1630 

“A Retraction on Bork,” The Washington Post, November 22, 1973 . 638 

Rhyne, Charles: 

Prepared Statement. 2727 

Testimony. 2724 

Telegram to President Reagan, September 13, 1987 . 2742 

Richards, David A.J.: 

Prepared Statement. 3050 

Testimony. 3047 

Richardson, Elliott: 

Prepared Statement. 3116 

Testimony. 3112 








































XLV1 


Hearings Before the Committee on the Judiciary, Nomination to be At¬ 
torney General, 93rd Cong., 1st Sess., May 9, 10, 14, 15, 21, 22, 1973, p. p®?* 

185. 3128 

Riggs, Betty: 

Letter to Senators, September 28, 1987 . 788 

Riley, Wallace: 

Prepared Statement. 2750 

Testimony. 2748 

Robb, Judge Roger: 

Memorandum to Judges Bork and Gordon, March 19, 1982. 144, 761, 3916 

Memorandum to Judges Bork and Gordon, October 5, 1982. 140, 765, 3920 

Roberts, John C.: 

Testimony. 3688 

“Judge Bork’s Legal Philosophy”. 6008 

Rogers, William: 

Prepared Statement. 1165 

Testimony. 1160 

Rostow, Eugene: 

Prepared Statement. 3282 

Testimony. 3279 

Letter to the Editor, The New York Times , August 3, 1987 (published and 

unpublished). 3287 

Rotunda, Ronald: 

Prepared Statement. 2457 

Testimony. 2454 

Ruth, Henry: 

Testimony. 3192 

San Francisco Lawyers’ Committee for Urban Affairs: 

Letter from Mark N. Aaronson to Chairman Biden, October 1, 1987. 6016 

"Resolution of the Executive Committee in Opposition to the Nomination 

of Robert H. Bork to the Supreme Court of the United States”. 6017 

Sandalow, Terrance: 

Prepared Statement. 3292 

Testimony. 3289 

Schauer, Frederick: 

Letter to Chairman Biden, September 22, 1987. 6018 

Schulhofer, Steven J.: 

Letter to Chairman Biden, September 28, 1987. 3844 

Schwartz, Louis B.: 

"Bork: Why Conservatives Should Oppose Him”. 6023 

Letter to Senator Leahy, September 10, 1987 . 6022 

“Moderate Bork? Defender of the First Amendment?”. 6027 

Schwartz, Herman: 

“The Frantic Reflagging of Bork," The Nation, September 19, 1987. 3504 

Statement. 3491 

“Senate Democrats Ask Independent Special Prosecutor,” The Washington 

Post. October 31, 1973. 632 

Shepherd, John: 

Testimony. 2735 

"In Support of Bork,” National Law Journal, September 21, 1987. 2744 

Simon, John G.: 

Prepared Statement. 2448 

Testimony. 2445 

Letter to Chairman Biden, September 29, 1987. 6029 

Simon, Senator Paul: 

Opening Statement. 92 

Questioning of: 

Judge Bork. 307, 438 

Panel of John Clay, John C. Roberts and John Boley. 3787 

Simpson, Senator Alan K.: 

Opening Statement. 47 

Closing Statement. 856 

Questioning of: 

Judge Bork. 236, 242, 380, 669, 677, 850 

William Coleman. 968 

William French Smith. 1142 

Nicholas deB. Katzenbach. 1152 

William Rogers. 1176 














































XLVII 


Page 

Harold R. Tyler, Jr. 1205 

Laurence H. Tribe. 1310 

Panel of Lee Bollinger, Robert Styron and Robert Rauschenberg. 2007 

Panel of Donald Baldwin, Dewey Stokes, Jerald R. Vaughn, John J. 

Bellizzi, John L. Hughes, Frank Carrington and L. Cary Bittick. 2092 

Honorable Warren E. Burger. 2106 

Panel of John Hope Franklin, William Leuchtenburg and Walter 

Dellinger. 2147 

Lloyd N. Cutler. 2186 

Panel of James Thompson, John Frank and Fred Foreman. 2230, 2238 

Panel of Chesterfield Smith, Robert Meserve and Robert Kaufman. 2267 

Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2389 

Panel of Forrest McDonald, Daniel Meador, George Priest, John 

Simon and Ronald Rotunda. 2480 

Panel of Robert Bennett, Paul Gerwirtz, Owen Fiss, Thomas Grey 

and Judith Resnick. 2716 

Panel of Thomas Eagleton and Cass Sunstein. 2802 

Griffin Bell. 2818 

Philip Kurland. 2852 

Panel of Paul Bator, Henry Monaghan, Lillian Riemer BeVier, A. 

Leo Levin and Dallin H. Oaks. 2949 

Panel of Herma Hill Kay, Kathleen Sullivan and David Richards.... 3084, 

3087 

Elliot Richardson. 3151 

Panel of Henry Ruth and George Frampton. 3234 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky. 3517 

Vilma Martinez. 3616 

Rabbi William Handler. 3633, 3635 

Herbert Brownell. 3842 

Panel of Harold Johnson, Robert Kliesmet and Ronald Hampton. 3872 

Letter to Joan E. Bertin, September 30, 1987. 779 

List of “Supreme Court Briefs Where Solicitor General Bork Supported 

the Rights of Minorities”. 975 

List of “Supreme Court Briefs Where Solicitor General Bork Supported 

the Rights of Women”. 978 

Questions submitted in connection with William Coleman’s testimony. 979 

Sinclair, I.B.: 

Memorandum, with attachments, October 6, 1987. 6032 

Smith, Chesterfield: 

Testimony. 2243 

Smith, Stuart: 

Prepared Statement. 2895 

Testimony. 2892 

"Bork Deserves to be a Justice,” The New York Times, September 16, 

1987. 455 

Smith, William French'. 

Prepared Statement. 1128 

Testimony. 1124 

Society of American Law Teachers: 

Letter from Emma C. Jordan to Chairman Biden, September 22, 1987. 2607 

List of “Law Professors Who Subscribe to the Society of American Law 
Teachers’ Letter of Opposition to the Nomination of Judge Robert H. 

Bork to the United States Supreme Court”. 2608 

Sowell, Thomas: 

Testimony. 2310 

Specter, Senator Arlen: 

Opening Statement. 75 

Questioning of: 

Judge Bork. 277,427,713,815 

William Coleman. 988,992 

Barbara Jordan. 1046 

Andrew Young. 1080 

Burke Marshall. 1104 

Edward Levi. 1121 

William French Smith. 1137 

Nicholas deB. Katzenbach. 1155 

William Rogers. 1178 

















































XLVIII 


Page 

1324 


Laurence H. Tribe. 

Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard 

Stewart and Gary Born. 1394 

Panel of Lee Bollinger, William Styron and Robert Rauschenberg. 2004 

Honorable Warren E. Burger. 2111 

Panel of John Hope Franklin, William Leuchtenburg and Walter 

Dellinger. 2152 

Lloyd N. Cutler. 2194 

Panel of Chesterfield Smith, Robert Meserve and Robert Kaufman. 2284 

Thomas Sowell. 2323 

Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and 

Wendy Williams. 2405 

Panel of Forrest McDonald, Daniel Meador, George Priest, John 

Simon and Ronald Rotunda. 2482 

Panel of Thomas Eagleton and Cass Sunstein. 2793 

Griffin Bell. 2822 

Philip Kurland. 2853 

Panel of Richard Thornburgh, A. Raymond Randolph, Stuart Smith 

and Jewel S. LaFontant. 2899 

Panel of Paul Bator, Henry Monaghan, Lillian Reimer BeVier, A. 

Leo Levin and Dallin H. Oaks. 2956 

Rev. Kenneth Dean. 3011 

Panel of Herma Hill Kay, Kathleen Sullivan and David Richards. 3102 

Elliot Richardson. 3131 

Panel of Terrance Sandalow, Steven Frankino, Maurice Holland, 
Ronald Davenport, Eugene Rostow, Thomas Morgan and Gerhard 

Casper. 3309 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky. 3525 

Beverly La Hay e. 3574 

Vilma Martinez. 3619 

Rabbi W illiam Handler. 3636 

Panel of John Clay, John C. Roberts and John Boley. 3788 

Roy Inn is. 3804 

“Statement by Members of the Association of the Bar of the City of New 
York Repu diating the Unauthorized Action of its Executive Committee in 
Opposing the Nomination of Judge Robert H. Bork to the Supreme Court of 

the United States,” September 22, 1987 . 2271 

“Statistics Concerning Judge Bork’s Record on Appeal in Cases Where He 

Wrote or Joined the Majority Opinion”. 737 

“Statistics Concerning Subsequent History with Respect to Judge Bork’s Dis¬ 
senting Opinions”. 740 

Stewart, Richard: 

Testimony. 1369 

Essay, “The Judicial Performance of Robert Bork in Administrative and 

Regulatory Law”. 1520 

Stokes, Dewey: 

Prepared Statement. 2026 

Testimony. 2023 

Strong, Jerome A.: 

Statement. 6049 

Styron, William: 

Prepared Statement. 1992 

Testimony. 1989 

Suffolk University Law School: 

“Report on the ‘Judge Bork Survey’ of Constitutional Law Professors,” 

October 5, 1987. 6058 

Sullivan, Kathleen: 

Prepared Statement. 3072 

Testimony. 3070 

Sullivan, Lawrence A.: 

Statement. 3479 


Sunstein, Cass: 

Prepared Statement. 2767 

Testimony. 2765 

“Supreme Court Briefs Where Solicitor General Bork Supported the Rights of 

Minorities,” list of. 354, 584, 975 

“Supreme Court Briefs Where Solicitor General Bork Supported the Rights of 
Women,” list of. 357, 583, 978 














































XLIX 


Tachau, David Brandeis: f>aKe 

Affidavit regarding Vander Jagt v. O'Neill, October 1, 1987. 6062 

Tate, S. Shepherd: 

Letter to Chairman Biden, September 18, 1987 . 2738 

Telephone Memorandum, The White House, August 3, 1973. 216 

Thompson, James: 

Testimony. 2202 

Thornburgh, Richard: 

Prepared Statement. 2865 

Testimony. 2863 

Thurmond, Senator Strom: 

Opening Statement. 29 

Closing Statement. 3893 

Questioning of: 


William Coleman. 954,964 

Edward Levi. 1120 

William French Smith. 1132 

Nicholas deB. Katzenbach. 1148 

William Rogers. 1169 

Harold R. Tyler, Jr. 1189,1247 

Laurence H. Tribe..... 1299 

Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard 

Stewart and Gary Born. 1985 

Panel of Donald Baldwin, Dewey Stokes, Jerald R. Vaughn, John J. 

Bellizzi, John L. Hughes, Frank Carrington, L. Cary Bittick. 2091 

Honorable Warren E. Berger. 2100 

Lloyd N. Cutler. 2177 

Panel of James Thompson, John Fr ank and Fred Foreman. 2225 

Thomas Sowell. 2315 

Panel of Forrest McDonald, Daniel Meador, George Priest, John 

Simon and Ronald Rotunda. 2479 

Panel of Robert Bennett, Paul Gewirtz, Owen Fiss, Thomas Grey and 

Judith Resnick. 2613 

Panel of Charles Ryne, John Shepherd, Wallace Riley and James T. 

Bland, Jr. 2755 

Panel of Thomas Eagleton and Cass Sunstein. 2789 

Griffin Bell. 2810 

Panel of Paul Bator, Henry Monaghan, Lillian Riemer BeVier, A. 

Leo Levin and Dallin H. Oaks. 2974 

Panel of Howard Krane and George Read Carlock. 2994 

Rev. Kenneth Dean. 3019 

Elliot Richardson. 3121 

Panel of Henry Ruth and George Frampton. 3205 

Panel of Terrance Sandalow, Steven Frankino, Maurice Holland, 
Ronald Davenport, Eugene Rostow, Thomas Morgan and Gerhard 

Casper. 3305 

Panel of Phillip Areeda, Thomas Kauper, Donald Baker and James 

Halverson. 3347 

Panel of Robert Abrams, Charles Brown and Robert Pitofsky. 3510, 3516 

Beverly LaHaye. . 3551 

Rabbi William Handler. 3630 

Panel of John Clay, John C. Roberts and John Boley. 3786 

Roy Innis. 3805 

Herbert Brownell. 3841 

Panel of Harold Johnson, Robert Kleismet and Ronald Hampton. 3869 

Transcript of Department of Justice “Press Conference of Honorable Robert 
H. Bork, Acting Attorney General of the United States,” October 24, 1973.... 595 

Transcript of Proceedings, Subcommittee on Antitrust, Monopolies and Busi¬ 
ness Rights, S. 567, Malt Beverage Interbrand Competition Act, August 4, 

1987, p. 57. 3533 

Tribe, Laurence H.: 

Prepared Statement. 1272 

Testimony. 1267 

Tyler, Harold R., Jr.: 

Testimony. 1184 
















































L 


Letter to Chairman Biden regarding the nomination of Robert H. Bork to 
be Associate Justice of the Supreme Court of the United States, Sep- Pa * e 
tember 21, 1987. 1228 

Letter to Senator Metzenbaum, September 4, 1987. 1255 

United Automobile, Aerospace & Agricultural Implement Workers of Amer¬ 
ica, UAW, International Union: 

Statement, September 1987 . 6066 

Statement of Owen Bieber, September 1987 . 6078 

United States Justice Foundation: 

Statement of Gary G. Kreep. 6085 

University of Akron: 

Letters from faculty members to Senator Metzenbaum. 6086 

University of California, Berkeley, School of Law: 

Letter from faculty members to Chairman Biden and Senator Thurmond, 

September 15, 1987. 6090 

University of California, Davis, School of Law: 

Letter from faculty members to Chairman Biden, September 16, 1987. 6092 

University of California, Santa Barbara: 

Letter from members of the Chicano/Latino Faculty Caucus to Chairman 

Biden, September 24, 1987. 6095 

Univerity of Texas at Austin Law School: 

Letter from faculty members to Chairman Biden and Senator Thurmond, 

September 1, 1987. 6099 

University of Wisconsin Law School: 

Letter from faculty members to committee members, September 16, 1987.. 6104 
Vander Jagt v. O'Neill : 

Bork, Judge Robert H., Memorandum to Judges Robb and Gordon, Sep- 


Bork, Judge Robert H., Memorandum to Judge Robb, October 1, 1982.... 139, 

764 

Bork, Judge Robert H., Letter to Judge Robb, October 1, 1982. 146, 763, 3919 


Bork, Judge Robert H., letter to Judge Gordon, September 24, 1982.... 146, 763, 

3918 


Bork, Judge Robert H„ Memorandum to Judges Robb and Gordon, Octo¬ 
ber 8, 1982. 141,766,3921 

Bork, Judge Robert H., Letter to Chairman Biden, with attachments, 

October 1, 1987 . 756, 3911 

Gordon, Judge James F., Letter to Chairman Biden, August 24, 1987. 136, 808 

Gordon, Judge James F., Letter to Judge Bork, December 17, 1982.... 143, 768, 

3923 


Gordon, Judge James F-, Affidavit, October 2, 1987. 4628 

Harrison, John, Declaration, September 28, 1987. 772, 3927 

Hufstedler, Shirley M., Letter to Senator Kennedy, October 3, 1987 . 4648 

Larkin, Paul, Declaration, September 25, 1987 . 769, 3924 

Lee, Joseph D., Affidavit, with attachments, October 2, 1987 . 4762 

Luff, Ruth, Affidavit, September 25, 1987 . 775, 3930 

Robb, Judge Roger, Memorandum to Judges Bork and Gordon, March 19, 

1982. 144,761,3916 

Robb, Judge Roger, Memorandum to Judges Bork and Gordon, October 5, 

1982. 140,765,3920 

Tachau, David Brandeis, Affidavit, October 1, 1987. 6062 

Vaughn, Jerald: 

Prepared Statement. 2040 

Testimonv. 2038 

Volk, Kenneth: 

Letter to Senator Hatch, September 24, 1987. 6106 

Letter to Senator Simpson, September 24, 1987. 2275 

Vorenberg, James: 

Letter to Chairman Biden, September 28, 1987. 6107 

Washington Council of Lawyers: 

Letter from Dennis A. Henigan to Chairman Biden, September 18, 1987.... 6108 
Washington Legal Foundation: 

Statement, September 23, 1987. 6111 

Washington Post, The: 

Belter, Leonard W., Letter to the Editor, September 22, 1987. 2233 


































LI 


Cutler, Lloyd N., “Judge Bork Well Within the Mainsteam,” September PIiKe 

16, 1987 . 247, 2175 

Haberman, Joshua 0., Letter to the Editor, August 6, 1987. 311, 3018 

Halverson, James T., Letter to the Editor, August 7, 1987. 388, 2276 

“Senate Democrats Ask Independent Special Prosecutor,” October 31, 

1973 . 632 


Watergate: 

American Bar Association, Minutes of meeting with Judge Bork (1987 

nomination)... 1250 

American Bar Association, Excerpts from William Coleman’s Memoran¬ 
dum on Robert Bork for the 1982 report. 1258 

Ben-Veniste, Richard and Frampton, George Jr., Stonewall: The Real 

Story of the Watergate Prosecution 142 (Simon and Schuster 1977). 639 

Black, Charles L., Jr., Letter to The New York Times, July 25, 1973. 200 

Black, Charles L., Jr., Letter to Congressman Bob Eckhardt, July 30, 1973 205 

Black, Charles L., Jr., “Mr. Nixon, the Tapes, and Common Sense,” The 

New York Times, undated... 203, 205 

Bork, Judge Robert H., Letter to Alexander Haig, July 31, 1973. 199 

Bork, Judge Robert H., Letter to Alexander Haig, August 3, 1973. 212 

Bork, Judge Robert H., Letter to Leonard Garment, Aujgust 3, 1973. 215 

Bork, Judge Robert H., Letter to Senator Kennedy in response to the 

Senator’s November 16, 1973 letter, undated. 223 

Buchanan, Patrick, Memorandum to Alexander Haig, August 3, 1973. 202 

Congressional Record, Excerpt on “Obtaining the White House Tapes,” 

August 1, 1973..... 213 

Federal regulations, Creation of the Watergate Special Prosecution Force. 3125 
Federal regulations, Abolition of the Watergate Special Prosecution 

Force, October 23, 1973. 3210 

Feeney, Floyd and Mahoney, Barry, letter to Chairman Biden, October 5, 

1987. 4552 


Feeney, Floyd and Mahoney, Barry, “The Lawfulness of Robert Bork’s 

Firing of the Watergate Special Prosecutor,” October 6, 1987. 4554 

Frampton, George, Prepared Statement. 3197 

Frampton, George, Testimony. 3194 

Haig, Alexander, Memorandum to President Nixon, August 2, 1973. 198 

Haig, Alexander, Memorandum to President Nixon, August 8, 1973. 204 

Hearings Before the Committee on the Judiciary, “Nomination of Elliot 
Richardson to be Attorney General,” 93rd Cong., 1st Sess., May 9, 10, 

14, 15, 21 and 22, 1973, p. 185. 3128 

Kennedy, Senator Edward M., Letter to Robert Bork, November 16, 1973.. 218 

Lacovara, Philip, Statement, September 1987. 3214 

Morrison, Alan B., Statement "Concerning Nader v. Bork and the Nomi¬ 
nation of Judge Robert H. Bork to be Associate Justice of the Supreme 

Court of the United States,” October 5, 1987. 5941 

“Nixon and Bork Reported Split on Prosecutor’s Role,” The New York 

Times, October 29, 1973 . 636 

“Nixon Plan on Prosecutor is Opposed by Mansfield,” The New York 

Times, October 28,1973 . 634 

Oaks, Dallin, Prepared Statement. 2944 

Oaks, Dallin, Testimony. 2941 

Peterson, Henry E., Statement, September 22, 1987 . 3222 

Richardson, Elliot, Prepared Statement. 3116 

Richardson, Elliot, Testimony. 3112 

Ruth, Henry, Testimony. 3192 

“Senate Democrats Ask Independent Special Prosecutor,” The Washing¬ 
ton Post, October 31, 1973. 632 

Telephone Memorandum, The White House, August 3, 1973. 216 

Transcript of Department of Justice “Press Conference of Honorable 
Robert H. Bork, Acting Attorney General of the United States,” Octo¬ 
ber 24, 1973 . 595 

Winter, Judge Ralph K., Affidavit, September 25, 1987. 3225 

Weicker, Senator Lowell: 

Letter to Judge Bork September 11, 1987 . 3936 

Weiss, Congressman Ted: 

Statement, September 29, 1987 . 6117 

Wilken MsdclcinBi 

Letter to Chairman Biden and Senator Thurmond, September 9, 1987. 6122 











































LII 

Wilkey, Malcolm R.: Page 

Letter to Chairman Biden and Senator Thurmond, September 24, 1987. 6124 

Williams, Wendy: 

Prepared Statement. 2373 

Testimony. 2369 

Williamson, Charles M.: 

Letter to Senator Hatch, with attachments, September 21, 1987 . 2624 

Winter, Judge Ralph K.: 

Affidavit, September 25, 1987. 3225 

Witness List. 6501 

Women’s Bar Association of the State of New York: 

Statement of Committee to Review the Nomination of Judge Robert H. 

Bork, September 17, 1987... 6127 

Women’s Legal Defense Fund, with Federation of Women Lawyers, Judicial 
Screening Fund, NOW Legal Defense and Education Fund, Equal Rights 
Advoc&tcs! 

Statement, October 19,1987 . 4531 

Yale Law School students: 

Record of opposition to Judge Bork’s confirmation, September 11, 1987. 6144 

Young, Andrew: 

Prepared Statement. 1071 

Testimony. 1067 

Youth for Democratic Action: 

Statement of Daniel Press, October 1987. 6145 

Zebley, John: 

latter to Chairman Biden, September 13, 1987 . 6150 
















NOMINATION OF ROBERT H. BORK TO BE 
ASSOCIATE JUSTICE OF THE SUPREME COURT 
OF THE UNITED STATES 


MONDAY, SEPTEMBER 28, 1987 

U.S. Senate, 

Committee on the Judiciary, 

Washington, DC. 

The committee met, pursuant to notice, at 10:07 a.m., in room 
SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr. 
(chairman of the committee) presiding. 

Also present: Senators Thurmond, Kennedy, Heflin, Humphrey, 
Specter, Leahy, Hatch, DeConcini, and Simpson. 

The Chairman. The hearing will come to order. 

Our first panel this morning has two witnesses. First, Senator 
Thomas Eagleton, who distinguished himself in this body for many 
years representing the great State of Missouri; and I should add 
that the hallmark of Senator Eagleton’s career in the Senate was 
his consideration of the separation of powers between the executive 
and legislative branches. And with recent events in the Persian 
Gulf, we should also recall that Senator Eagleton was one of the 
principal architects in the debate on the War Powers Act. 

Second, Professor Cass Sunstein, professor of law at the Universi¬ 
ty of Chicago Law School. 

Gentlemen, would you stand to be sworn? 

Do you swear the testimony you are about to give will be the 
whole truth and nothing but the truth, so help you, God? 

Senator Eagleton. I do. 

Mr. Sunstein. I do. 

Senator Thurmond. Mr. Chairman, are you adhering to the 5- 
minute rule today? 

The Chairman. We will adhere to the 5-minute rule today. 

Senator Kennedy. Mr. Chairman, is that with regard to ques¬ 
tions, or in terms of the presentations? 

The Chairman. What I would suggest is that that is with regard 
to questions and to panels. I will not, out of deference to a former 
colleague, keep him to 5 minutes; we will keep this to 10 minutes. 

So we will begin with Senator Eagleton. 


(2759) 



TESTIMONY OE A PANEL CONSISTING OF: HON. THOMAS F. 

EAGLETON, AND CASS R. SUNSTEIN 

Senator Eagleton. Thank you, Mr. Chairman. I appreciate your 
invitation to be here today, and I will try to do it within 5 minutes. 

There is one thing on which all of us in this hearing room can 
agree. In this 200th birthday year of the Constitution, this hearing 
on the confirmation of Judge Bork has been the best lesson in con¬ 
stitutional history that the country could receive. 

Part of that constitutional history tells us that during the period 
of the Articles of Confederation, the fledgling and stumbling not-so- 
United States suffered mightily for the lack of a strong executive. 

The Founding Fathers corrected that and created a strong feder¬ 
al executive. And I am for a strong federal executive. But the Fa¬ 
thers also created a strong Congress and a strong system of federal 
courts. The Founding Fathers created a balanced government. 

Judge Bork remembers only the first of that three-part power- 
sharing relationship. He remembers only the strong executive. And 
whenever there is a clash between the executive and the legisla¬ 
ture, he decides in favor of sin overwhelmingly powerful execu¬ 
tive—as it were, the second coming of George III. Let me illustrate. 

WAR POWERS 

Judge Bork has already declared his antipathy to the Act both as 
public policy and constitutional doctrine. 

Let us pass the policy question and spend a minute on the consti¬ 
tutional doctrine issue. Judge Bork, with all of his purported ad¬ 
herence to “original intent”, forgets that the Founding Fathers de¬ 
liberately decided that matters relating to war and the use of 
American military forces are shared powers, just as, I might add, 
the nomination and confirmation of Supreme Court Justices are 
shared powers between the President and the Congress. 

The Constitution gives Congress a grave responsibility in deter¬ 
mining where and how American armed forces are to be deployed 
under threat of hostile action—for example, the Persian Gulf, and 
perhaps someday, God forbid, Nicaragua. 

Judge Bork says: No. It is all up to the President. 

I urge Judge Bork to read Article I, Section 8 of the Constitution, 
where the various foreign policy powers of the Congress are spelled 
out. Once again. Judge Bork’s views are vintage George III, and the 
Founding Fathers wanted no more of vintage George III. 

FOREIGN INTELLIGENCE SURVEILLANCE ACT 

The same answer. Once more this is, to Judge Bork, purely, 
solely and exclusively the executive’s function. Judge Bork believes 
that Congress has no role in intelligence matters; Congress ought 
to keep its nose out of it, and the courts, too, for that matter, be¬ 
cause the courts are too stupid to figure it out anyway. See his 
Wall Street Journal article in 1978. Leave all of this up to the ad¬ 
ministration's aides; leave it up to Bill Casey’s seasoned and cau¬ 
tious vision. 


(2760) 



2761 


SPECIAL PROSECUTOR 

Judge Bork used to boil over on this one. He had to fire one, and 
he had to hire and deal with a new one. I do not question Judge 
Bork’s role in the Saturday night massacre. I do question his con¬ 
stitutional notion that the Founding Fathers intended that only Ed 
Meese could make a good and responsible investigation of Ed 
Meese. 


STANDING 

One thing I have to concede to Judge Bork—he is blunt. As far 
as Congress ever having standing to challenge anything under the 
sun that the executive branch might do or withhold, Judge Bork 
says, in the Barnes case, “We ought to renounce outright the whole 
notion of Congressional standing.” 

That is it—never, no time, nowhere, no way, can Congress chal¬ 
lenge the President in any court of law; sort of an imperial Presi¬ 
dency—more, one might say, of George HI. 

In short, Mr. Chairman, when it is a dispute between the Presi¬ 
dent and the Congress, as far as Judge Berk is concerned, the 
President is always right, and Congress should always be deprived 
of its power to challenge him in court—even on matters of deep in¬ 
stitutional conflict, like the pocket veto case brought by, among 
others, the then Republican majority leader and current chief of 
staff for the President, Howard Baker. 

CONCLUSION 

Judge Bork believes not just in a powerful President, but in an 
omnipotent President. This may be the vogue of contemporary con¬ 
servatism with Ronald Reagan in the White House. But the politi¬ 
cal pendulum can and will someday swing. An omnipotent conserv¬ 
ative President can be succeeded by an omnipotent liberal Presi¬ 
dent. 

Those conservatives who today may revel in Judge Bork’s consti¬ 
tutional notion that the President can do no wrong, tomorrow may 
rue the day that they took an oath to such a dogma. Senator Hum¬ 
phrey may consider and shudder that someday his colleague Sena¬ 
tor Kehnedy might be in the White House as that omnipotent 
President. 

Thank you, Mr. Chairman. 

The Chairman. Thank you, and you stayed within 5 minutes. I 
congratulate you on the substance of your comments and also the 
length of time you took. 

[Statement of Senator Thomas Eagleton follows:] 



2762 


STATEMENT 


THOMAS F. EAGLETON 

former United .States Senator (D., Mo.) 

University Professor of Public Affairs 
Washington University, St. Louis, Missouri 


before 

Committee on the Judiciary 
United States Senate 


Mr. Chairman: 

There is one thing on which all of us in the 
hearing room can agree: In this 200th birthday year 
of the Constitution, this hearing on the confirmation 
of Judge Bork has been the best lesson in constitutional 
history that the country could receive. 

Part of that constitutional history tells us 
that during the period of the Articles of Confederation, 
the fledgling and stumbling United States suffered mightily 
for the lack of a strong executive. The Founding Fathers 
corrected that and created a strong federal executive. 
I am for a strong executive. But the Fathers also created 
a strong Congress and a strong system of federal courts. 
The Founding Fathers created a balanced government. 

Judge Bork remembers only the first of that 
three-part, power-sharing relationship. He remembers 
only the strong executive and whenever there is any clash 
between the executive and the legislature, he decides 
in favor of an overwhelmingly powerful executive — the 
second coming of George III. 

Let me illustrate. 

War Powers . 

Judge Bork has already declared his antipathy 
to the Act both as public policy and constitutional 
doctrine. Let's pass the policy question and spend a 


minute on constitutional doctrine. 



2763 


Judge Bork, with all of his purported adherence 
to "original intent," forgets that the Founding Fathers 
deliberately decided that matters relating to war and 
the use of American military forces are shared powers 
— just as, I might add, the nomination and confirmation 
of Supreme Court justices are shared powers between the 
President and the Congress. 

The Constitution gives Congress a grave 
responsibility in determining where and how American 
armed forces are to be deployed under threat of hostile 
action — the Persian Gulf or Nicaragua, for example. 
Judge Bork says: No, it's all up to the President. I 
urge Judge Bork to read Article I, Section 8 of the 
Constitution, including the clauses "Congress shall have 
Power ... to declare War ... and to make Rules for the 
Government and Regulation of the land and naval Forces." 

Once again, his views are vintage George III 
and the Founding Fathers wanted no more vintage George 
III. 

Foreign Intelligence Surveillance Act . 

Same answer — once more this is, to Judge Bork, 
purely, solely, and exclusively the executive's function. 
Congress ought to keep its nose out of it and the court's 
too for that matter, because the courts are too stupid 
to figure it out anyway. (See Wall Street Journal , March 9, 
1978). Leave all of this up to the administration's 
aides; leave it up to Bill Casey's seasoned and cautious 
vision. 

Special Prosecutor . 

Judge BorJc used to boil over on this one. He 
had to fire one and had to hire and deal with a new one. 

I do not question Judge Bork's role in the Saturday Night 
Massacre. I do question his constitutional notion that 
the Founding Fathers intended that only Ed Meese could 
make a good and responsible investigation of Ed Meese. 



2764 


Standing . 

One thing I have to concede to Judge Bork: he 

is blunt. 

As far as Congress ever having standing to 
challenge anything under the sun that the executive branch 
might do or withhold. Judge Bork says: 

"We ought to renounce outright the 

whole notion of congressional standing." 

( Barnes v. Kline ) 

That's it, never, no time, nowhere, no way, can 
Congress challenge the President in any court of law 

— the Imperial Presidency — more of George III. 

In short, Mr. Chairman, when it's a dispute between 
the President and the Congress, as far as Judge Bork 
is concerned, the President is always right and Congress 
should always be deprived of its power to challenge him 
in court — even on matters of deep institutional conflict 
like the "pocket veto" case brought by, among others, 

the then Republican Majority Leader and current Chief 
of Staff for the President, Howard Baker. 

Conclusion^ 

Judge Bork believes not just in a powerful 
President, but in an omnipotent President. This may 
be the vogue of contemporary conservatism with Ronald 
Reagan in the White House. But the political pendulum 

can and will, someday, swing. An omnipotent conservative 
President can be succeeded by an omnipotent liberal 

President. 

Those conservatives who today may revel in Judge 
Bork's constitutional notion that the President can do 
no wrong, tomorrow may rue the day that they took an 

oath to such a dogma. Senator Hatch must consider and 
shudder that someday his colleague Senator Kennedy might 
be in the White House as the all-powerful President. 



2765 


The Chairman. Professor Sunstein? 

TESTIMONY OF CASS SUNSTEIN 

Mr. Sunstein. Thank you, Mr. Chairman. I will try also to stay 
within 5 minutes. 

My subject also is that of Executive power, the power of the 
President, an issue that has received very little attention thus far 
in the course of these hearings. 

Justice Scalia, in his own confirmation hearings, testified that it 
is the system of checks and balances, of separation of powers, that 
even more than the system of individual rights has been responsi¬ 
ble for freedom under our Constitution. 

I think that in so saying, Justice Scalia spoke for the attitude of 
many Americans toward the system of checks and balances. During 
the last 10 years, much of the Supreme Court’s docket—this is sur¬ 
prising to some—but much of the Supreme Court’s docket has in¬ 
volved issues of checks and balances, and there is every reason to 
believe that in the next 10 years, checks and balances will also 
play a central role. 

The events of the last 6 months—even the events of the last 6 
days—attest to the continuing importance of checks and balances 
in current constitutional controversies. 

Now, I will be basing these remarks on Judge Bork’s views on 
separation of powers, not on his work as a law professor, where he 
has been said to have been paid to be provocative. These remarks 
will be directed to his work as a witness before the Senate, often 
before this very committee, and his performance as a lower court 
judge. These are his remarks as a public official or as a quasi¬ 
public official. 

There are two general lessons to be drawn from Judge Bork’s 
work on separation of powers. The first is that in this context 
Judge Bork does not believe in judicial restraint. Let me say that 
again. In this context, Judge Bork does not believe in judicial re¬ 
straint. 

In the area of individual rights, Judge Bork is well-known for in¬ 
terpreting the Constitution narrowly, out of deference to majori¬ 
ties, in particular out of deference to the Congress. 

In the area of checks and balances, Judge Bork has construed the 
Constitution aggressively. There is no record of deference to the 
Congress. Indeed, in this area, Judge Bork has often opposed the 
Congress in contexts in which the text of the Constitution and the 
intent of the framers of the Constitution—the original intent— 
seemed to argue precisely in the opposite direction. One sees little 
attentiveness to the intent of the framers, to history, or to the con¬ 
stitutional text in Judge Bork’s work on separation of powers. 
Here, he favors an aggressive judicial role and aggressive use of the 
Constitution. This is, as I say, a striking contrast with his work on 
individual rights. 

The second point is a related one, and that is that in contests be¬ 
tween the President and Congress, Judge Bork has fairly consist¬ 
ently—not always, but fairly consistently—favored the President. 
This has distinguished him from many conservatives and moder¬ 
ates as well as liberals, who have supported efforts by Congress to 
redress the constitutional balance. Often in the past decade, Con¬ 
gress has passed legislation designed to recapture some of the au¬ 
thority—both in the domestic arena and in the foreign arena—to 



2766 


recapture authority that was Congress’ under the original constitu¬ 
tional framework. 

Those efforts by Congress, those initiatives, have been viewed 
hospitably by most observers, including of course most Members of 
Congress. Judge Bork has often been distinctive, almost unique, in 
suggesting that those efforts to redress the constitutional balance 
are themselves affirmatively unconstitutional. 

Now I would like to support these views just with a few illustra¬ 
tions. I will almost list them. 

Judge Bork has suggested an expansive reading of executive 
privilege. 

Judge Bork has opposed the Special Prosecutor Act on constitu¬ 
tional grounds, and his objection goes to the heart of the Act as it 
currently stands. Judge Bork’s objection to the Special Prosecutor 
Act is unsupported by the text of the Constitution; indeed, it flies 
in the face of the text of the Constitution. It is unsupported by 
precedent. The best precedent we have on point is a unanimous de¬ 
cision indicating strongly that the Independent Counsel Act is con¬ 
stitutional. 

Judge Bork was, I believe, actually unique in opposing the For¬ 
eign Intelligence Surveillance Act on constitutional grounds. That 
was a statute supported by then Attorney General Edward Levi, 
supported by the CIA, and supported by the Department of Justice. 
Judge Bork has also, as recently as 2 weeks ago, suggested that the 
War Powers Resolution may be unconstitutional—again, a conclu¬ 
sion that is difficult to reconcile with the text of the Constitution, 
which gives to Congress, not to the President, the power to declare 
war, 

Mr. Chairman, let me conclude by suggesting that none of Judge 
Bork’s reasoning in these cases is irresponsible; none of his reason¬ 
ing is unsupported. All of his conclusions are plausible. Nonethe¬ 
less, the pattern is clear. In this area, I believe that Judge Bork’s 
positions are a legitimate source of concern for conservatives, mod¬ 
erates and liberals interested in the system of checks and balances. 

Thank you. 

[Statement of Professor Cass R. Sunstein follows:] 



2767 


STATEMENT OF CASS R. SUNSTEIN 

PROFESSOR OF LAW 

UNIVERSITY OF CHICAGO LAW SCHOOL 

Mr. Chairman and Members of the Committee: 

I will be speaking today about the views of Supreme Court 
Nominee Judge Robert H. Bork on the constitutional system of 
checks and balances—in particular, on the relationship between 
Congress and the President* In his own confirmation hearings, 
Justice Scalia suggested that it was the structure created by the 
Constitution, as much as or more than the bill of rights, that is 
responsible for freedom in America. A nominee's views on issues 
of governmental structure often receive little attention, but 
they are extraordinarily important. 1 believe that Judge Bork's 
approach to the system of checks and balances, and in particular 
to presidential power, should be a source of concern to 
conservatives, liberals, and moderates alike. This is so 
especially in light of the fact that constitutional controversies 
between the President and Congress have been so frequent in the 
recent past, and are likely to play an enormous role in 
constitutional law in the near future. 

Let me begin with some preliminary points. My statement here 
xS a narrow one, attempting to describe and evaluate Judge Bork's 
work in a particular area. I do not deal with such issues as the 
function of the framers' intent in constitutional law. Judge 
Bork's position on individual rights, the appropriate roles of 
the President and the Senate in the confirmation process, or 
Judge Bork's constitutional theory in general. 

It is also important to keep in mind that Judge Bork’s 
views, as set out here, are based largely on his testimony before 
Congress—sometimes as an official of the executive branch—and 
his opinions as a lower court judge. It is possible that Judge 
Bork's views have changed, or that as a Supreme Court Justice, 



2768 


Judge Bork's positions would be different from those that he has 
expressed in different institutional capacities. As you are well 
aware, it is difficult to predict the behavior of a newly 
appointed Justice of the Supreme Court. 

It is important as well to emphasize that my remarks here do 
not bear on Judge Bork's ability or character. Indeed, the high 
regard in which Judge Bork's ability and character should be and 
are in fact held makes public criticism of his views an 
exceedingly unpleasant task. And I emphasize that Judge Bork's 
positions, here as elsewhere, are far from unreasoned or 
irresponsible. 

Finally, I should like to suggest that Judge Bork's 
positions on issues of presidential power are especially 
revealing. In this area, where it is by no means clear what 
position is "liberal" and what "conservative," it is possible to 
avoid the strong emotions raised by such issues as abortion and 
affirmative action, and to obtain some new light on Judge Bork's 
approach to issues of constitutional interpretation. 

I. In General 

Three basic points emerge from Judge Bork's work on the 
relationship between Congress and the President. 

First : In this area. Judge Bork’s views do not reflect a 
belief in judicial restraint. Judge Bork has concluded that 
measures enacted by Congress are unconstitutional even when that 
conclusion is compelled neither by the text and history of the 
Constitution nor by precedent. This position contrasts quite 
sharply with Judge Bork's approach to questions of individual 
rights, where he reads the Constitution in a way that is designed 
to reflect deference to democratic processes. 

Second : Judge Bork interprets the Constitution as 
establishing a powerful president. His legal position in the 
Watergate controversy was no aberration; it is an example of a 
general belief that the Constitution creates a strong presidency. 
Numerous areas illustrate this belief. Judge Bork’s position on 
special prosecutor legislation, on the Watergate controversy, on 



2769 


the bombing of Cambodia, on judicial review of executive action, 
on the War Powers Resolution, on standing, on executive 
privilege, and on the foreign intelligence surveillance act of 
1978 all confirm this point. 

Third; In many areas, particularly those chat involve a 
conflict between Congress and the President, Judge Bork takes a 
narrow view of congressional power. This point is reflected in 
the areas noted above and, to a lesser degree, in his position on 
congressional standing. Perhaps most striking in this regard is 
Judge Dork’s quite narrow view of congressional power under 
section 5 of the fourteenth amendment, the basic constitutional 
safeguard of rights against state government. 

None of Judge Bork's positions in this area is 
irresponsible. All are based on plausible interpretations of the 
Constitution. But the basic pattern suggests a judge whose 
beliefs are a source of concern for those interested in the 
system of checks and balances. Judge Bork's views, in this area 
at least, have sometimes been out of step with those of a vast 
majority of constitutional thinkers—conservatives, liberals, and 
moderates alike. 


II. Particular areas 


The following discussion sets forth Judge Bork's views on 
various issues involving the relationship between Congress and 
the President. The discussion consists of an outline of Judge 
Bork's position and of a brief discussion of where and why his 
position is controversial. In general, the source of my concern 
is this; Judge Bork has been willing to support judicial 
intrusions into the democratic process when there is no clear 
warrant for those intrusions in precedent or in the text and 
history oE the Constitution. 

The areas include Judge Bork’s constitutional opposition to 
tne special prosecutor act; to presidencially imposed limits on 
the presidential power of removal; to broad congressional power 
ur.der section 5 of the fourteenth amendment; to congressional 
limitaticns on presidential power in the area of foreign affairs; 



2770 


and to congressional standing. 

1. The Special Prosecutor . The independent counsel act, 
originally the special prosecutor act, was enacted in 1978. 
Congress passed the act after a lengthy discussion of the 
constitutional issues. Dozens of witnesses supported the 
constitutionality of the act. The conference version was adopted 
by an overwhelming vote—in the Senate by a voice vote and in the 
House by a margin of 370-23. 

In his testimony before Congress in 1973, Judge Bork 
vigorously argued that the Constitution does not permit Congress 
to create a special prosecutor independent of the President. See 
Hearings before the Subcommittee on Criminal Justice, Committee 
on the Judiciary, House of Representatives, 93d Cong,, 1st Sess. 
251 (1973). His basic position is that the enforcement of the 
laws is an executive function; that "the Constitution lodges in 
the executive branch complete control over criminal prosecutions” 
(id. at 253); and that Congress does not have the constitutional 
authority to separate prosecution from the presidency. Above all, 
his complaint was that the proposed bills would vest in the 
courts to power to appoint the special prosecutor. See also 
Hearings before the Committee on the Judiciary, United States 
Senate, 93d Cong., 1st Sess. 449 (1973). 

In his testimony before this Committee, Judge Bork suggested 
that what he said "back in 1973” applied to "very different 
statutes than the one that is now in effect." In fact, however, 
the provision to which Judge Bork objected In 1973 is, in 
relevant part, identical to the provision now in effect. Judge 
Bork's principal objection was to judicial appointment of the 
special prosecutor. The provision for judicial appointment 
remains in current law, apparently on the understanding that the 
President should not be entrusted with appointing the person 
prosecuting his own high-level employees. 

Judge Bork's position is surprising for several reasons. 
First, the plain language of the Constitution—emphasized by 
Judge Bork in other contexts—appears to authorize the 
arrangement that he believes unconstitutional. Article II, 



2771 


section 2 says: "[Tjhe Congress may by Law vest the Appointment 
of Such inferior Officers, as they think proper, in the President 
alone, in the Courts of Law, or in the Heads of Departments. M 

Second, the Supreme Court interpreted Congress' power under 
the Appointments Clause quite broadly in the leading case. Ex 
Parte Siebold , 100 U.S. 371 (1879). There the Court upheld 
Congress's decision to allow for judicial appointment of election 
supervisors, even if the supervisors are executive officers. Tne 
Court said: ”It is no doubt usual and proper to vest the 
appointment cf inferior officers in that department of 
government, executive or judicial, or in that particular 
executive department to which the duties of such officers 
appertain. But there is no absolute requirement to this effect in 
the Constitution . . . [A]s the Constitution stands, the 
selection of che appointing power, as between me functionaries 
named, is a matter resting in the discretion of Congress." Ex 
Parte Siebold thus offers substantial support for the concept of 
a special prosecutor, and the Supreme Court has never questioned 
Siebold . 

Third, Judge Bork's constitutional opposition to the special 
prosecutor act fits uneasily with any belief in judicial 
restraint. The concept of a special prosecutor has repeatedly 
been endorsed by Congress; it has passed through normal 
democratic channels. The idea that the act should be struck down, 
as unconstitutional, calls for a large measure of judicial 
intrusion into the lawmaking province of Congress. 

Fourth, and finally, opposition to the special prosecutor 
act might be thought inconsistent with the basic constitutional 
principle of checks and balances. The point of that system is to 
ensure that the various branches have the power to check each 
other. See The Federalist No. 51. The special prosecutor 
mechanism promotes this function; it permits Congress to check 
the executive branch by ensuring that the President is not 
himself entrusted with the prosecution of his own appointees. 

Judge Bork's responses to these arguments fall in several 
categories. First, he suggests that the Appointments Clause “was 
added with little or no debate toward the end of the 


88-374 0 - 89-3 



2772 


Constitutional Convention. It is impossible to believe that as an 
afterthought, and without discussion# the framers carelessly 
destroyed the principle of separation of powers that they had so 
painstakingly worked out in the course of their deliberations." 
Hearings at 254. In Judge Bork's view# the Appointments Clause 
authorizes courts only to appoint judicial functionaries; it does 
not permit Congress to vest in courts the power to appoint 
officials in the executive branch. 

Judge Bork's position in this regard finds some support in 
Ex Parte Hennen , 38 U.S. 230 (1839), an early case on the point; 
but it is inconsistent with the text of the Appointments Clause, 
and in any event his position is squarely inconsistent with the 
later decision in Ex Parte Siebold . Siebold interpreted Ex Parte 
Hennen expressly contrary to Judge Bork's understanding. It may 
be the case that the Appointments Clause should not be read to 
allow Congress to vest the courts with.power to appoint all 
inferior executive branch officials. But at a minimum, the Clause 
might be understood to allow the power of appointment to be 
vested when there is no "incongruity," Ex Parte Siebold , supra , 
in the judicial appointment, and when there would instead be 
incongruity—because of conflict of interest—‘in appointment by 
the executive branch. 

Second, Judge Bock suggests that Siebold "is entirely a 
straw. . . . All that was done was to appoint some people to 
watch some House of Representatives' elections. I think probably 
it should not have been done. . . . But, even if one think ex 
parte Siebold was correctly decided, whicn I do not, I would nope 
that era is behind us." Id. at 264. This response is quite 
confusing. Siebold interpreted the Appointments Clause in 
accordance witn its terms; ana it recognized cnat Congress may 
vest the appointment of at least some executive officers in the 
courts. Judge Bork’s position .-.ere shows a clear wili.ngr.es3 to 
reject precedents with which he disagrees. 

It should not be forgotten here tnac Judge Born's view that 
the special prosecutor act is unconstitutional (a) was rejected 




2773 


by the vast majority of expert witnesses before Congress at the 
time and (b) has been rejected by every federal court that has 
addressed the issue to this date. 

2. The Watergate affair . In the Watergate controversy# the 
Department of Justice, under Attorney General Elliott Richardson, 
promulgated a regulation assuring Special Prosecutor Archibald 
Cox that he could not be fired except for "extraordinary 
improprieties." Judge Bork apparently believed that this 
regulation was unconstitutional and unenforceable, and that it 
could not be applied to the President. 

It is not altogether easy to sort out Judge Bock’s 
constitutional views in the Watergate affair. The foundation of 
his position appears to be a claim that the Constitution forbids 
any limitation on the President's power to fire high-level 
executive branch employees—even if the limitation is imposed by 
the executive branch of its own free will. Renee Judge Bork 
helped the President write an amendment to the charter governing 
Special Prosecutor Leon Jaworski, saying, in pertinent part, 
"(Tjhere is no expectation whatever that the President will ever 
have an occasion to exercise r.is constitutional right to 
discharge the Special Prosecutor ." Hearings before the Committee 
on the Judiciary, United States Senate, 1st Sess. 85 (1973) 
(emphasis added). See also ijd. at 89, suggesting Judge Bork's 
view that the President does nave suen presidential power, as a 
matter of inherent constitutional authority. 

Apparently tms understanding undeegirded Judge Berk's 
decision to discharge Archibald Cox. It will be recalled that 
that decision was unlawful under a Department of Justice 
regulation that allowed discharge of the special prosecutor only 
for "extraordinary improprieties." Thus there can be no doubt 
Chat Judge Bork's decision to fire Archibald Cox was illegal 
under a validly adopted regulation. The legality of his decision, 
for Judge Bork, must have depended on his view, raised by him in 
at least one lawsuit, that the regulation was an unconstitutional 
restriction of presidential power. 

In hearings before this Committee, Judge Bork suggested that 



2774 


in his view, the protection of the special prosector ran against 
the Attorney General alone, and was not intended to bar the 
President from discharging Archibald Cox. This response is 
confusing for two reasons. First, it was the Attorney General—at 
the time. Judge Bork himself—who discharged Cox. Second, the 
regulatory protection would'serve no function if it did not bind 
the President, for it was the President who was under 
investigation. 

The issue of presidential power here is somewhat different 
from that raised by the special prosecutor act. Here the question 
is whether rhe Constitution will permit enforcement, as against 
the President, of an executive branch directive that, of the 
executive branch's own accord , limits presidential power. By 
contrast, the question raised by the special prosecutor act has 
to do with Congress * power to restrict presidential authority to 
appoint, supervise, and remove an inferior officer. Judge Bork 
believes that both measures are unconstitutional, but it would be 
possible to distinguish the two cases. 

United States v. Nixon , 418 U.S. 683 (1974), decided by a 
unanimous Supreme Court, squarely rejects Judge Bork’s position 
on the Watergate issue. In Nixon, the Court referred with 
approval to the limitations on the removal power and said that 
those limitations were lawful. The Court wrote that so ’’long as 
this regulation is extant it has the force of law." Nader v. 

Bork , 366 F. Supp. 104 (D.D.C. 1973), is to the same effect. The 
court there said that Judge Bork’s ’’firing of Archibald Cox in 
the absence of a finding of extraordinary impropriety was in 
clear violation of an existing Justice Department regulation 
having the force of law and was therefore illegal.” Id. at 108. 
(The decision was later vacated as moot, but in light of United 
States v. Nixon , there should be no serious question about 
whether it was rightly decided.) 

Judge Bork's apparent view—that the President may not 
voluntarily limit his plenary power to discharge high-level 
officials—is somewhat surprising. A long line of cases, relied 
on in both United States v. Nixon and Nixon v, Bork , recognizes 




2775 


that validly adopted regulations of the executive branch are 
binding on the executive branch, including the President. Of 
course the President is under no obligation to adopt such 
regulations in the first instance* But once they are adopted, 
they are mandatory. Judge Bork’s position to the contrary can 
find little support in the decided cases. 

3. Congressional power to enforce the fourteenth amendment . 
The fourteenth amendment contains the equal protection clause and 
the due process clause? it is also the route through which the 
bill of rights is applicable to the states. It is one thing to 
suggest that the Court itself—because of its undemocratic 
character—should construe the fourteenth amendment relatively 
narrowly. (Judge Bork, and many others, have so argued.) It is 
quite another thing to suggest that the power of Congress—the 
representative of the people—to enforce the fourteenth amendment 
should likewise be sharply limited. 

It is Judge Bork's endorsement of this second proposition 
that is of particular interest. Judge Bork has taken an extremely 
narrow view of the power of Congress under section five of the 
fourteenth amendment. Indeed, his view is probably the most 
narrow possible. Although his position in this regard does not 
bear on the question of presidential power, it is directly 
relevant to his views of congressional authority and of checks 
and balances. 

Consider, for example. Congress' deliberations about whether 
to enact S. 158, the "human life bill," which would (a) deem 
human life to exist from the point of conception and (b) remove 
from the lower federal courts jurisdiction over abortion cases. 

Some background is necessary m order to understand Judge 
Bork’s position on this matter. Section 5 of the fourteenth 
amendment allows Congress co ''enrorce" che fourteenth amendment 
"by appropriate legislation." There is little doubt that the 
framer3 of zr.e iourreenzr. amendment „nzendea Congress to oe cne 
principal enforcer of tr.e newly recognized rights. And m a 
series of cases, tne Suoreme Court nas neld tnat section 5 allows 
Congress tc invalidate practices that the Court, interpreting the 



2776 


fourteenth amendment on its own, would uphold. Thus in Katzenbach 
v. Morgan , 384 U.S. 641 (1966), the Court held that Congress 
might invalidate literacy tests on the ground that they were 
racially discriminatory, even though the Court had itself, in 
Lassiter v. Northampton Election Board , 360 U.S. 45 (1959), 
upheld literacy tests. In Oregon v. Mitchell , 400 U.S. 112 
(1970), the Court held that Congress could eliminate all literacy 
tests. Other cases reflect the same understanding of Congress' 
power. See South Carolina v. Katzenbach , 383 U.S. 301 (1966); 

City of Rome v. United States , 446 U.S. 55 (1980). 

The exact reach of Congress' power under section 5 has not 
been clearly decided. A relatively narrow reading would suggest 
that Congress has the power to adopt general rules, or to use its 
own factfinding competence, to eliminate practices that the Court 
would deem unconstitutional. In this view, a ban on literacy 
tests could be justified on the ground that at least some such 
tests were adopted in order to discriminate against blacks. Under 
a broader reading. Congress has the power to decide what is a 
substantive violation of the fourteenth amendment. Under this 
view.. Congress could decide t.nat literacy tests were 
unconsrltutional because of their discriminatory effects, even if 
there was no discriminatory motive. Katzenbach v. Morgan offers 
some support for both readings. 

In Katzencacr. Morgan , nowever, ;ne Court made it clear 
that congressional power under section 5 does not extend to the 
"dilution" of established constitutional rights. And it was on 
this ground that there was general agreement amcng experts in 
constitutional law that the Human Life Bill was unconstitutional. 
Even if Roe v. Wade was not rightly decided — of course a 
disputed question — it does recognize a woman’s right to have an 
abortion, and so long as Roe is the law, Congress may not, under 
Katzenbach , infringe on that right. 

Judge Bork's views on the matter are based on a quite 
different line of analysis. In his view. Congress' power is 
extremely narrow, including "the power to provide criminal 
penalties, redress in civil damage suits, and the like, for those 



2777 


violations of those constitutional guarantees as they are defined 
by the courts.” See Hearings before the Subcommittee on 
Separation of Powers, Committee on the Judiciary, United States 
Senate, 97th Cong., 1st Sess. 310 (L982). Thus Katzenbach, Oregon 
v. Mitchell , and related cases, in Judge Bork's view, 

"represent!] very bad, indeed pernicious, constitutional law." 

This view, if accepted, would of course call for a dramatic 
change in constitutional doctrine. (It is noteworthy as well that 
in these hearings. Judge Bork said that " nobody believes that the 
Constitution allows, much less demands , the decision in Roe v. 

Wade or in dozens of other cases of recent years ." Id. at 315 
(emphasis added). Roe is of course a disputed decision, and many 
people oeneve thac it was wrongly decided; but the idea that 
"nobody" believes that it or "dozens'* of other decisions are even 
"allowed" by the Constitution is striking, and demonstrably 
false.) 

Judge Bork's narrow view of congressional power under 
section 5 of the fourteenth amendment, while defensible, is also 
not widely shared and indeed is probably wrong. It would also 
make an enormous difference in the law. As noted above, a modest 
alternative position—one that would greatly increase legislative 
authority—would suggest that at a minimum. Congress has the 
power to enact prophylactic rules to forbid practices that would 
(in the Court’s view) violate the Constitution. 

Under that theory, the legislation at issue in Katzenbach 
and Hi tchell is unobjectionable. Congress could decide that 
literacy tests for voting were often unconstitutionally motivated 
and that a general prohibition on such tests is the most 
effective means of preventing unconstitutionality. A broader view 
would suggest that Congress itself has power to interpret the 
Constitution, and that it may disagree with a judicial decision— 
at least if Congress is being more protective of constitutional 
rights than the Court. Katzenbach supports this view as well. But 
even if the broadest view shouLd be rejected. Judge Bork's quite 
narrow reading of congressional power is surprising, and it would 
have severe consequences for efforts by both conservative and 
liberal congresses to protect individual rights. 



2778 


4. Foreign affairs . There is evidence as well that Judge 
Bork takes a narrow view of congressional power in the area of 
foreign affairs, and a correspondingly broad view of presidential 
authority, (a) The bombing of Cambodia . Some intimations of Judge 
Berk's view on the role of the President in foreign affairs are 
given by his remarks on the bombing of Cambodia in 65 American S j 
Journal of International Law 79 (1971). According to Judge Bork: 
“There is no reason to doubt that President Nixon had ample 
Constitutional authority to order the attack upon the sanctuaries 
in Cambodia seized by North Vietnamese and Viet Cong forces. The 
authority arises both from the inherent powers of the President 
and from Congressional authorization." He continued to suggest 
that "(ajny detailed intervention by Conqress in the conduct of 
the Vietnamese conflict constitutes a trespass upon powers the 
Constitution reposes exclusively in the President." He added: "It 
is completely clear that the President has complete and exclusive 
power to order tactical moves in an existing conflict," and that 
"it is perfectly clear that a President may conduct armed 
hostilities without a formal declaration of war by Congress' and 
that Congress may authorize such action without such a 
declaration." 

These views suggest a willingness to construe presidential 
power quite broadly, but standing by themselves, they are far 
from indefensible, at least insofar as they suggest that the 
bombing of Cambodia was lawful. The most controversial aspect of 
Judge Bork’s statements here is his claim, not merely that the 
President naa constitutional authority to bomb Cambodia, out also 
tnac Congress nas no power to control the Camoodia incursion . 

Under the Constitution, of course, Congress has the power to 
declare war; the Presicenc s authority in toreign affairs is 
hardly plenary. 

A piausicle position, contrary co mat or Judge 5or, »s 
that Congress has the constitutional power to decide the extent 
of any war. At tne very least. Congress probably has the power to 
limit a war to a particular country. Judge Bork's view appears to 



2779 


be that once a war has been authorized, the President has the 
inherent constitutional power to extend its reach If necessary, 
even though that judgment is inconsistent with the congressional 
declaration. In some circumstances. Judge Bork's position is 
probably correct; tactical judgments may enable tne President to 
extend a war into other nations. But his broad and unqualified 
statements are somewhat disturbing. 

(b) Foreign Surveil l ance . Expansive views on presidential 
power are reflected in Judge Bork's testimony on the foreign 
intelligence bill of 1978. See Hearings before the Subcommittee 
on Courts, Civil Liberties, and the Administration of Justice of 
the Committee on the Judiciary, House of Representatives, 95th 
Ceng., 2d Sess. 130 (1978). The proposed statute was supported by 
the Department of Justice and the intelligence community itself. 
The bill authorizes the use of electronic surveillance of 
American citizens in the United States, and provides for such 
surveillance through a procedure of court approval for most 
targets or Attorney General approval for surveillance that would 
nor involve communications with American citizens. According to 
the Attorney General, the measure would "striKe{] a proper 
balance between the vital interests at staxe." Id* at p. 3. The 
act was passed in tne Senace by a voce of 95-1; the House 
approved it by a vote of 246-123. 

Judge 3ork, on tne ocner hand, contended cnac tne oixl was 
"thoroughly a bad idea" and "almost certainly unconstitutional as 
well.” Id. at 130. In his view, the requirement of a request for 
court approval "would almost certainly increase unauthorized and 
damaging disclosures of sensitive information." Id. at 132. 

The most striking aspect of Judge Bock's testimony is his 
suggestion that the bill would violate Articles II and III of the 
Constitution. With respect to Article II, Judge Bork claims that 
"Congress 1 constitutional role is largely confined to the major 
issues. . . . Congress . . . may not dictate the President's 
tactics in an area where he legitimately leads." Id. For Judge 
Bork, the proposed bill violates this principle by "prescribing 
numerous details of the conduct of foreign intelligence 



2780 


surveillance, imposing the warrant requirement . . , and forcing 
upon the President the wholly inapposite requirement that 2 l 
federal criminal law be about to be violated before he may defend 
the nation's interests.* Id. With respect to Article III, Judge 
Bork contends that there is no constitutional case or controversy 
and that the use of Article III judges is therefore 
unconstitutional. (This view does not bear on the question of 
presidential power and will therefore not be discussed here.) 

Judge Bork’s reading of Article II here is extremely 
adventurous and indeed quite curious. It is true, as Judge Bork 
suggests, that the President has discretionary power, under the 
Commander-in-Chief clause, to make tactical decisions during war. 
But to say this is not to suggest that Congress is without power 
to impose limitations on surveillance. Whether the President has 
the power to engage in surveillance without congressional 
authorization is itself a disputed and difficult question. But 

the key point here is that under the necessary and proper clause, 

1 ‘ , 

limitations by Congress appear to fall plainly within legislative 
power. The President has no "inherent* authority, in the face of 
a congressional judgment to the contrary , to engage in 
surveillance activities. In some respects, Judge Bork's position 
here is his most idiosyncratic of all those discussed in this 
memorandum—and the view in greatest tension with judicial 
restraint and respect for precedent. 

In defending his position before this Committee, Judge Bork 
invoked lower court decisions suggesting that the President has 
the power to engage in surveillance if Congress has not acted. 

But that is not the issue here, which is whether the President 
has such power if and when Congress has limited surveillance. No 
case supports Judge Bork's conclusion that he does have that 
power. 

Youngstown Sheet & Tube Co. v. Sawyer , 343 [J.S. 579 (1952), 
suggests that Congress has considerable power to limit 
presidential action domestically, even if that action is 
undertaken during time of war and in an effort to promote foreign 
affairs. In his testimony. Judge Bork did not even refer to 



2781 


Youngstown , which appears to argue powerfully against his 
position. And even if Youngstown can be distinguished, there is 
little support in the text or history of the Constitution, or in 
the decided cases, for Judge Bork’s claim. (Compare the 
circumspect opinion by Justice Powell for the Supreme Court in 
United Stares v. United States District Court , 407 U.S. 297 
(1972), in which the Court held that the fourth amendment 
requires judicial approval for domestic security surveillance.) 

M) Abourezkiv. Reagan , 785 F.2d 1043, 1063 (D.C. Cir. 
1986), involved a suit brought by American citizens challenging 
the failure of the Secretary of State to issue visas to aliens 
invited to speak on issues of public concern. Judge Bork, citing 
the need for deference to the executive in the area of foreign 
relations, dissented from the panel decision, which remanded the 
decision to the State Department for further explanation. Judge 
Bork rejected statutory and constitutional challenges to the 
decision, largely because of what he perceived as a need for 
deference to the executive. 

(d) In 1978, Judge Bork stated; "As expiation for Vietnam, 
we have the War Powers resolution, an attempt by Congress to 
share in detail decisions about the deployment of U.S. armed 
forces in the world. It is probably unconstitutional and 
certainly unworkable." Wall Street Journal, March 9, 1978. 

The reasons for this conclusion are not spelled out, and his 
explanation before tms Committee is somewhat obscure. In his 
remarks, Judge Bork initially suggested that the consulation and 
notice requirements "seem constitutional." He emphasized that the 
Resolution ’’contains a iegislacive veto" and that the Supreme 
Court has neid mat legislative vetoes are unconstitutional. 

Later he suggested that "on the part about controlling the 
lnccoouccion or troops, or witnarawai or troops, and so forth, . 

, . chat could be Constitutional in some cases and possibly 
anconst_ rut- era I -.~i ocr.ars. ’ In r.io :;«w, me act would raise a 
constitutional problem "Lf it leads to micro-management of 
taccicax decisions _n a conflict, 11 ana "tnac is all I meant in 


this onef one sentence . . 



2782 


In context. Judge Bork's remark in the Wall Street Journal 
and his later explanation in testimony suggest that he believes 
that the War Powers Resolution might lead to unconstitutional 
interference with the President's warmaking powers. This 
conclusion should be understood against the background of the 
bipartisan support for the Resolution in the Congress—284-135 in 
the House, 75-18 in the Senate—and the fact that numerous 
scholars had testified in favor of the constitutionality of the 
bill. 

The constitutional issue is not a simple one, and Judge Bork 
is correct in pointing to the President's power to make tactical 
decisions during a war. The Constitution does, however, vest in 
the Congress the power "to declare war," and there is little in 
the history of the Constitution or the intent of its framers to 
forbid congressional controls of the sort involved in the War 
Powers Resolution. The Resolution does not in fact lead to 
"micro-management." Its purpose and effect are to ensure that 
Congress, rather than the President, decides whether the nation 
is to be at war. 

5. Congressional standing . Barnes v. aline , 759 F.2d 21 
{D.C. Cir. 1985), involved a suit by thirty-three individual 
memoers of the House of Representatives, joined by the Senate and 
the Speaker and bipartisan leadership of the House. The 
plaintiffs sought a ceciaratory judgment to nullify President 
Reagan's attempted pocket veto of certain legislation, k major 
question in tne case was whether the plaintiffs, as members of 
Congress, had "standing" to seek judicial review of the 
President’s action. 

In Kennedy v. Sampson , 511 F.2d 430 (D.C. Cir. 1974), the 
court had held that a United States Senator had standing to 
challenge an unconstitutional pocket veto on the ground that it 
had nullified his original vote in favor of the legislation at 
issue. The court reasoned that the unconstitutional exercise of 
the pocket veto power directly interferes with the right of 
members of Congress to participate in the lawmaking process. The 
court said that in the context of (a) a constitutional impasse, 

(b) a dispute over an issue of law, and (c) a case involving a 



2783 


direct personal stake of a member of Congress, standing would be 
available. In Barnes , the court applied this precedent. 

Judge Bork dissented. In his lengthy and far-ranging 
opinion, he suggested that we "ought to renounce outright the 
whole notion of congressional standing," Id. at 41. In his view, 
the members of Congress were "suing not because of any personal 
injury done them but solely to have the courts define and protect 
their governmental powers." Id. at 42. Judge Bork attempted to 
connect this concern with his general belief in a restricted 
judicial role and in sharp limitations on "standing" to seek 
review of executive action. "Every time a court expands the 
definition of standing, the definitions of the interests it is 
willing to protect through adjudication, the area of judicial 
dominance grows and the area of democratic rule contracts ." Id. 
at 44 {emphasis added}. 

This last statement is especially odd in light of the fact 
that standing was accorded in Barnes and similar cases precisely 
in order to increase "the area of democratic rule." when an 
unconstitutional pocket veto is permitted, and is not challenged, 
a law enacted by the democratic process is not enforced. 
Limitations on standing, in such cases, thus work against 
democratic institutions, not in favor of them. 

Judge Bork's central concern in Barnes seemed to be that 
members of Congress should use other avenues than the courts iE 
they seek to challenge presidential behavior, "Members of 
Congress, dissatisfied with the President's performance, need no 
longer proceed, as historically they always have, by oversight 
hearings, budget restrictions, political struggle, appeals .to the 
electorate, and the like, but may simply come to the district 
court down the hill from the Capitol and obtain a ruling from a 
federal judge." Id. at 45. Judge Bork added: "When federal courts 
approach the brink of 'general supervision of the operations of 
government,’ as they do here, the eventual outcome may be even 
more calamitous than the loss of judicial protection of our 
liberties .” Id . at 71 {emphasis added). See also Vander Jaqt v. 

0 1 Neill , 6S9 F.2d 1166, 1177 (D.C. Cir. 1903) (Bork, J., 


dissenting). 



2784 


The subject of congressional standing is a difficult one# 
and reasonable people certainly differ; but it is net easy to 
understand why Judge Bork is so exercised by it. Three 
observations are appropriate here, {a) One major error in his 
opinion is the suggestion that the question in Barnes v. Kline 
was a political rather than a legal one. The question depended 
centrally on the meaning of the Constitution. The complaint was 
one of law rather than of policy. Courts were not on the "brink 
of general supervision of the operations of government." They 
were deciding a strictly legal question, 

(b) The setting of Barnes was specialized and narrow, in the 
Barnes case# members of Congress were not arguing that they could 
bring suit whenever the President has failed to enforce the law, 
or undertaken action of which they disapprove. The action 
involved the unusual context of a pocket veto. In that context, 
recognition of a congressional cause of action does not obviously 
disturb the basic constitutional structure. Indeed, such an 
action would be a crisper and more refined method of dealing with 
the problem than (for example) a congressional cut-off of 
appropriations. 

(c) The notion that recognition of congressional standing, 
and related matters, could seem to Judge Bork to be possibly 
"more calamitous than the loss of )udicial protection of our 
liberties" should not go unremarked. It is a most unusual 
statement, suggesting a distinctive understanding of what is 
paramount to tne conscitucional plan. 

(d) There is a close connection—apparently overlooked by 
Judge Bork—between limitations on standing and the division of 
auctioncy oeeween tne Presiaenc and tne Congress. If standing is 
denied, statutes enacted by Congress can be ignored by the 
executive brar.cn. In statutory cases, .z is cases tnat allow 
standing that increase democratic control, by vindicating laws 
enacted by Congress against the executive branch. 

7. Executive privilege . In a brief dissenting opinion. 




2785 


Judge Bork suggested an expansive view of executive privilege. 
Wolfe v. Department of HHS , 815 F.2d 1527 (D.C. Cir. 1987), 
involved a suit brought under the Freedom of Information Act 
seeking access to a regulations log of HHS concerning proposed 
FDA regulations. The court held that the information within the 
log was not protected by the "deliberative process" exception to 
the FOIA f and that executive privilege did not bar disclosure. 

Judge Bork dissented, principally on the statutory issue; 
but he spoke to the constitutional question as well. Although he 
phrased his views tentatively on this point, his opinion takes 
executive privilege as Ear as, and probably further than, a'nv 
judge who has yet addressed the issue. Judge Bork suggested, 
without ruling definitively, that an effort by Congress to 
require disclosure of these logs would invade the constitutional 
power of the President- For Judge Bork, executive privilege 
protects communications to which the President is not a party. 

Id. at 1539-1540. Any delegation from the President "to be 
effective should carry with it the delegation of the Presidents 
constitutional privilege." Id. at 1539. 

While the issue is cne on which reasonable people may 
differ, no Supreme Court opinion extends executive privilege so 
far. A plausible alternative position would limit the privilege 
to communications involving the President himself, or at least to 
nign-levei poncy determinations involving presidential 
decisions. 

3. Access to the courts- review of admin is t rat i *-e action . 

I t 

Additional evidence about Judge Bork's views cn presidential ' 
power is provided by his votes in cases involving challenges to 
federal administrative action. The record suggests that in cases 
brought by beneficiaries of regulatory programs, as well as in 
those brought by members of Congress, Judge Bork is sometimes 
reluctant even to allow the plaintiffs into court. See, e.g.. 
Center for Auto Safety v. Thomas , 906 F,2d 1071 (D.C. Cir. 1986). 
In Center for Auto Safety , several organizations brought suit 
against the EPA, challenging a rule that adjusted, and applied 
retroactively, some of EPA's previous fuel economy ratings. The 



2786 


plaintiff-organizations included various members who argued that 
the retroactive adjustment would impair their ability to have the 
widest possible choice of fuel-efficent vehicles. In the 
plaintiffs' view, the EPA's decision would remove substantial 
financial incentives to produce fuel-efficient vehicles in the 
future. Judge Bork concurred in the court's decision, which both 
recognized standing and invalidated the EPA rule, but said that 
he did so "only because we are bound on the issue of standing by 
the prior panel opinion.’* Id. at 1080. 

Judge Bork's doubts about standing here appear to depend on 
a view that while regulated industries almost always have 
"standing" to sue, the beneficiaries of regulation—environmental 
organizations, consumer groups, civil rights organizations—often 
should not be understood to have a "legal interest" at stake. 

Their remedy—unlike that of regulated industries—should lie in 
the political process, not the courts. 

The consequence of such a principle would be to immunize 
executive decisions—even unlawful ones—from challenge. That 
result would create an unfortunate bias in judicial review: a 
judicial challenge to regulatory intervention would be available, 
but executive branch officials would be aware that failure to 
implement directives set out by Congress would not be subject to 
judicial correction. And Judge Bork's view is not a tribute to 
judicial restraint in the abstract; it is only a selective 
application of the principle of restraint. 

Similar understandings are reflected in Judge Bork's record 
with respect to challenges to executive action. In this extremely 
important area. Judge Bork's belief in executive power may 
sometimes tend to defeat laws enacted by Congress, as executive 
officials who have failed to implement statutory directives are 
permitted to escape legal control. 

Ill. Conclusion 

Judge Bork's views in the area of relations between Congress 
and the President do not reflect a strong belief in judicial 



2787 


restraint* Moreover, they show some willingness to depart from 
precedent. His views here appear to depend not primarily on 
constitutional text and history, but instead on a set of beliefs 
drawn from his reading of the constitutional structure. 

Those beliefs include a relatively broad understanding of 
presidential power; a relatively narrow reading of congressional 
authority in cases involving conflicts between presidential and 
congressional authority? an occasional willingness to protect 
executive officials against judicial review, especially in suits 
brought by Congress and beneficiaries of regulatory programs 
enacted by Congress; a reluctance, in some areas of foreign 
affairs and domestic relations, to permit Congress to place 
limitations on presidential power; and a significant degree of 
judicial "activism,” in the form of a willingness to strike down 
legislation that has been enacted deraocratically* 

These beliefs are distinctive — in a few cases, 
idiosyncratic. Judge Bork's positions, here as elsewhere, are 
reasoned, plausible, and well-defended; but they should be a 
source of concern to conservatives, liberals, and moderates 
interested in the constitutional system of checks and balances. 



2788 


The Chairman. Thank you both very much. 

I hope the rest of the witnesses today follow your lead, and my 
colleagues, in being as thoughtful, concise, and within the time. 

Let me start with my 5 minutes, since we have set it for 5 min¬ 
utes, with you, Tom, Senator Eagleton. 

We have been told by many here that Judge Bork is a majoritar- 
ian; that his Madisonian view of the Constitution is that—and we 
have heard it repeated time and again—that he really thinks that 
unless the Constitution explicitly delineates a right or a protection, 
that the Court should always give deference to the majority view 
as expressed, because he has more faith in 535 Members of Con¬ 
gress than nine men and women sitting on the Court, and the list 
goes on. 

Do you view Judge Bork’s attitude toward war powers, foreign 
intelligence surveillance, special prosecutor, the general question of 
standing for Congress, as consistent with what is otherwise a ma- 
joritarian view of the Constitution? 

Senator Eagleton. Self-evidently, it would be inconsistent with 
such a so-called majoritarian view. Insofar as I can tell, no one else 
in the country takes the absolutist Bork position on the Foreign In¬ 
telligence Surveillance Act. And as Professor Sunstein points out, 
each one of his positions might be defensible, each one of his posi¬ 
tions might be intellectually arguable. But when you add them all 
up together, then there is the destruct pattern to which he re¬ 
ferred. When there is a contest, competition between the President 
and the Congress, the President always wins, the omnipotent Presi¬ 
dent always wins. And that is how Judge Bork views it, time and 
again. 

The Chairman. Professor, Judge Bork in two cases as a sitting 
judge, in Vander Jagt v. O’Neill in 1983, and in Barnes v. Kline in 
1985, used awfully strong language. In one case, he said that recog¬ 
nition of congressional standing might “be more calamitous than 
the loss of judicial protection of our liberties.” Let me read that 
again. He said recognition of congressional standing might be 
“more calamitous than the loss of judicial protection of our liber¬ 
ties.” And in another case, he used equally as strong language de¬ 
nouncing congressional standing. 

Can you tell me whether or not there is any case that you are 
aware of where Judge Bork has indicated that there should be con¬ 
gressional standing? And there must be someplace that he has 
sided with the—I think there is—well, is there any place that he 
has sided with the legislative branch against the executive? 

Mr. Sunstein. On the first question, I think in one of his very 
first decisions on the court, he joined a decision recognizing con¬ 
gressional standing. He later concluded that his original decision in 
that respect was a mistake, and his view now is crystal clear, 
which is that we ought to abolish outright the whole notion of con¬ 
gressional standing. 

On that issue, Judge Bork’s view distinguishes him from many 
conservative judges, including Judge Raub and Judge Wilkie on the 
Washington court, who have recognized congressional standing. 

The Chairman. Translate this into everyday terms. When Judge 
Bork says that the Congress and Members of the Congress have no 
standing to challenge a President’s action, what does that mean? 



2789 


Mr. Sunstein. What that means in practice is that there is no 
legal avenue; there is no way to get the court to require the Presi¬ 
dent to obey the law as enacted by Congress. At least, there is no 
way Members of Congress can go to court. 

Now, in the context of the pocket veto, what that means is the 
President wins. 

The Chairman. What does “pocket veto’’ mean? 

Mr. Sunstein. “Pocket veto” means if the President fails to 
return a law and veto it, it ordinarily becomes law, except if Con¬ 
gress adjourns within 10 days, and the President fails to return it, 
then the law expires. Now, the pocket veto is when Congress has 
not been available—it has adjourned—or the President to return it; 
the President has effectively let it expire. 

Now, the pocket veto becomes controversial in cases where Con¬ 
gress has appointed an agent who is available to receive the veto, 
and the President has not done anything. If Congress has appoint¬ 
ed an agent, and the President has not done anything, then the law 
should become a law. If Congress cannot bring suit to make it be a 
law, then there is no way for Congress to get the law on the books. 
The President can simply ignore it. 

Keep in mind the practical consequences of the denial of congres¬ 
sional standing. They are very broad. Justice Powell suggested that 
in some cases of constitutional impasse, there ought to be congres¬ 
sional standing. A flat prohibition on congressional standing means 
that Members of Congress could never go to court to get the Presi¬ 
dent to obey the law. That is a very dramatic position. 

The Chairman. My time is up. I thank you for your answers. 

I yield to the ranking member, Senator Thurmond. 

Senator Thurmond. We are glad to have you gentlemen here. 

Professor Sunstein, did you teach under Dean Levi? 

Mr. Sunstein. Dean Levi was not the dean while I was there. He 
is still at the University of Chicago, and I perceive myself, in many 
respects, still under him. I have a lot of admiration for Dean Levi. 

Senator Thurmond. You have great respect for him, do you? 

Mr. Sunstein. Enormous respect for him. 

Senator Thurmond. Now, he came and testified on behalf of 
Judge Bork, and his testimony—I do not know whether you have 
had a chance to read it or not—but it is a strong endorsement of 
Judge Bork. 

He feels that Judge Bork possesses the integrity, the judicial 
temperament, and the professional competence to be a good Su¬ 
preme Court judge. But you disagree with him? 

Mr. Sunstein. If you use integrity and professional competence, I 
do not think it would be possible to have concerns about Judge 
Bork on those scores. He is a first-rate lawyer. I prefer to deal with 
specifics, and on questions of presidential power, there have in fact 
been strong disagreements between Judge Bork and Attorney Gen¬ 
eral Levi. 

The Foreign Intelligence Surveillance Act Attorney General Levi 
supported, vehemently. Judge Bork, uniquely, said that it was un¬ 
constitutional. 

Senator Thurmond. Did you hear the testimony of Chief Justice 
Burger? 



2790 


1 _ 

Mr. Sunstein. I heard a little bit of Chief Justice Burger’s testi¬ 
mony, Senator. 

Senator Thurmond. Chief Justice Burger is now retired. He has 
no interest in this matter, and he came here, voluntarily. Now 
Chief Justice Burger says some people have accused Judge Bork of 
being an extremist. 

He says, “If he’s an extremist, I’m an extremist, and he thinks 
like I do.” 

Judge Bork handed down 150 decisions while on the circuit court, 
and he has participated in 400 decisions, or more, and none of 
those decisions have been reversed by the Supreme Court, and 
Chief Justice Burger feels that he is in line with the Court, his 
thinking is in line with the Court. 

Do you know Chief Justice Burger? 

Mr. Sunstein. I have met him. I clerked- 

Senator Thurmond. And you have respect for him? 

Mr. Sunstein. Yes, I do, Senator. 

Senator Thurmond. And you heard his strong endorsement of 
Judge Bork? 

Mr. Sunstein. I heard a piece of it on McNeil/Lehrer. 

Senator Thurmond. So you disagree with the dean of your law 
school—Dean Levi—and disagree with former Chief Justice 
Burger? 

Mr. Sunstein. Well, as I say, Senator, I would like to speak to 
specifics and not generalities. Now lower-court performance is 
really an inaccurate predictor of Supreme Court performance. If 
you look at the Chief Justice’s own record on the lower court, you 
will not find a very good prediction of Chief Justice Burger’s per¬ 
formance on the Supreme Court. So, too, for Justice O’Connor, so 
for Justice Stevens, so for Justice Blackmun, all of whom have de¬ 
parted a great deal from their performance as lower-court judges. 

Now I also want to say—the word “extremist” one wants to be 
very careful about—but in the area of executive power, the consti¬ 
tutional opposition to the War Powers Resolution, the constitution¬ 
al opposition to the Special Prosecutor Act, in those cases Judge 
Bork went in the face of an overwhelming consensus in the other 
direction. So, too, on standing; so, too, in other areas. 

I regret to say that in these areas. Senator, Judge Bork’s posi¬ 
tions are not moderate. 

Senator Thurmond. That is your opinion, and you have given it. 
Did you hear the testimony of the presidents of the American Bar 
Association? We had three here the other night, at one time. They 
all know Judge Bork and have respect for him. 

Did you hear that testimony? 

Mr. Sunstein. I heard pieces of it. 

Senator Thurmond. They all endorsed him highly. They said he 
is in the mainstream and he would make a great Supreme Court 
Justice. 

That is all. Thank you very much. 

Mr. Sunstein. Do you want me to comment on that, or- 

The Chairman. Yes. Please do. 

Mr. Sunstein. Okay. The American Bar Association, I under¬ 
stand for the first time in a long time—maybe the first time ever— 
was badly split on this issue. That is my understanding. And Judge 



2791 


Bork’s views have provoked a kind of split in the legal community 
which is extremely unusual. 

Senator Thurmond, let me add: I think this is an issue on which 
people of good faith can disagree, and I do not think the issue can 
be decided by marshaling lists of people opposed and in favor. 

The Chairman. Senator Eagleton, we are glad to have you here. 
I have no questions of you. Thank you very much. 

Senator Eagleton. Thank you, Senator Thurmond. Good to see 
you, sir. 

The Chairman. Would you like to make any comments. Senator? 

Senator Eagleton. No. 

The Chairman. Did you hear the testimony of the two former 
presidents of the ABA who also opposed him? 

Mr. Sunstein. McNeil/Lehrer gave me excerpts from that as 
well. Senator. 

The Chairman. I yield to Senator Kennedy. 

Senator Kennedy. Thank you very much, Mr. Chairman. 

I know we are short on time. I cannot resist the opportunity to 
welcome back to the Senate our former colleague, Senator Eagle¬ 
ton. I think that as we listened to his testimony, it is useful and 
relevant to recognize, that he was a former district attorney, the 
youngest one in the history of Missouri, and a former attorney gen¬ 
eral in Missouri, the youngest one elected to that position, I think 
nationwide. And for 18 years he served in the U.S. Senate. He was 
one of the prime sponsors of the War Powers Act, he served on the 
Intelligence Committee, and therefore, when he speaks about the 
War Powers Act, and when he talks about the Foreign Surveillance 
Intelligence Act he brings a demonstrated background. Those of us 
preparing for the hearings today have to take note of the writings 
that he has made on these issues. 

It is a subject he has thought about deeply, and I think we have 
certainly been enriched by his own testimony. 

Professor Sunstein has appeared before the Judiciary Committee 
on separation-of-powers issues three different times, under Republi¬ 
can and Democratic chairmanship. I must say, Professor, usually 
you are testifying in favor of greater power and authority located 
in the Executive. 

I think the panel understands that we have been dealing with 
first amendment issues, we have been dealing with equal-protec¬ 
tion questions, we have been dealing with civil-rights issues, and 
we have been dealing with privacy issues. 

We also have talked about the relationship between the Execu¬ 
tive and the Congress, and it is on this issue that your testimony is 
extremely important. 

And in that relationship between the Executive and the Con¬ 
gress, it seems that you have identified about four or five major 
areas. The War Powers Act. We are talking about congressional 
standing; we are talking about the foreign-surveillance—legislation 
that was passed overwhelmingly, with only I believe a handful of 
dissenters; and we are talking about the pocket veto; and about the 
Special Prosecutor. 

And on each of those basic questions which have come up about 
the relationship between the Congress and the Executive. You have 



2792 


each stated, that on all five of those questions, that Judge Bork 
conies out, unequivocally, in favor of presidential power. 

I would like to ask a specific question on the role of standing. 

Say the Congress passed a bill that prohibited arms sales to Iran, 
or say we took some action that prohibited the Executive, by 
taking certain actions in Central America, to make arms sales to 
Iran. Tf we passed that, and the President perhaps would veto it, 
but we still overrode the veto, in terms of majority rule by the peo¬ 
ple’s representatives. 

And then the President went ahead and sold those arms to Iran 
in opposition to what was the stated law. If the members, under 
Judge Bork’s opinion, if the members did not have standing, who 
would be able to bring the case against an executive who apparent/ 
ly would violate the law? Since the Judge’s underst an ding is that 
the only person that would have standing would be injured per¬ 
sons. 

We are not talking about Social Security here, although the 
Judge did find adversely against our senior citizens in the one 
Social Security case that he took. 

When we are talking about the issues such as a prohibition of 
arms sales, or prohibition of certain other kinds of activities in 
Central America—if the Members of Congress do not have stand¬ 
ing, who would? 

And if we do not, what is the implication in terms of the rela¬ 
tionship between the Executive and the Congress? 

Professor Sunstein. I gather that Judge Bork’s view is that no 
one would have standing, and you might think there—that is actu¬ 
ally a hypothetical case, but there is a real-world one, which is 
Goldwater v. Carter, when Senator Goldwater sued the President 
on the abrogation of the treaty with Taiwan. 

Senator Kennedy. Taiwan treaty. 

Mr. Sunstein. No one would have standing. 

Now what Judge Bork says is that these are, quote, “essentially 
political questions,” unquote, that ought not to be resolved in 
court. 

But they are not essentially political questions. The question is a 
legal one, under statute or the Constitution. 

Alexander Hamilton, in The Federalist Papers, wrote that to 
suppose that these are essentially political questions is a mistake. 
This is to suppose that the will of the Constitution, or the law, is 
superior to the will of the elected representatives. That has always 
been the tradition. 

Senator Kennedy. Could I hear from maybe Senator Eagleton 
just on that particular issue. 

The Chairman. Senator Eagleton, would you speak to that. 

Senator Eagleton. I think the professor is correct, and it would 
leave the Congress with only one alternative, the most awesome al¬ 
ternative of all, to trigger the impeachment process. 

Can you imagine, if that is the only remedy Congress has, when 
it believes that a law that it has passed, has been violated by the 
President and the courts will not hear the Congress in terms of 
standing, the only remedy then Congress has is to commence in the 
House of Representatives an impeachment trial? That would put us 
in an incredible situation. 



2793 


Senator Kennedy. I thank you both. 

The Chairman. Thank you very much. Senator Specter. 

Senator Specter. Thank you, Mr. Chairman. I join my col¬ 
leagues, Senator Eagleton, in welcoming you back. I would rather 
have you on this side of the table than on that side, but it is nice to 
have you at the table. 

Senator Eagleton. Thank you very much. 

Senator Specter. In light of the 5-minute rule, I have two ques¬ 
tions and I am going to ask them both at the start. 

They are separate questions on separate subjects. The first ques¬ 
tion is to you, Senator Eagleton. 

I share your concern about the issue of standing, and about the 
issue of the War Powers Act, and I discussed that, extensively, with 
Judge Bork when he was here. 

Now his response on the issue of standing was that not only did 
he think that Congress should have no standing, but he thought 
the President should have no standing either, if a controversy 
arose. 

Not that that is necessarily meaningful, because it is harder to 
structure a case where the President sues than where the Congress 
sues. 

But he did raise one consideration which I thought had signifi¬ 
cant merit, and that was the regular political forces to resolve the 
controversy. Now you have testified that the sole remedy is im¬ 
peachment, and I question that because we have the power of the 
purse and can stop the appropriations process. 

When you consider litigation, it is very hard to bring it to a con¬ 
clusion. There has been litigation started on the War Powers Act 
over the Persian Gulf, but it is still in the district court. 

There is the problem of case in controversy. It is mooted out. 

Now, the question I have for you. Senator Eagleton—and you 
have been in the Congress a long while and know these matters in¬ 
timately. Is it realistic for the Congress to withhold funding of mili¬ 
tary actions? And I frankly think it is highly doubtful that we can 
do that. 

But is it conceivable, that if we, exercising our congressional 
power, stop funding in the Persian Gulf, that the next time the 
President might respect the War Powers Act? That is question one. 

Question two is entirely different, and it goes to a line which 
comes from Professor Sunstein’s written testimony, saying that it 
is difficult to predict the behavior of a newly appointed Justice of 
the Supreme Court, and this question is for you, Professor Sun- 
stein, and it is this. 

We know that we have been surprised in the past by what Jus¬ 
tices have done—Chief Justice Warren, Justice Black, Justice Tom 
Clark repudiated Truman on the seizure of the steel mills, and so 
forth. 

The evidence which has been presented so far, albeit it limited, is 
that Judge Bork enjoys collegiality. He has testified that the rela¬ 
tionships are good on the D.C. Court of Appeals. 

We have not heard from any of his colleagues on that issue, and 
there has been something in the press, which might suggest some¬ 
thing to the contrary, but, on the record we have now. Judge Bork 
is a man who understands judicial collegiality. As one member of 



2794 


the Court, he has to understand that he can have sway only if 
there is some sort of a consensus that he can be a party to, and 
that he cannot be an extremist and have any likelihood of having 
his views felt on the Court, cannot say protection does not apply to 
women, or cannot say clear-and-present danger is outside the pale, 
et cetera. 

My question to you is, in light of your statement and recognition 
of the difficulty of predicting the behavior of newly appointed Jus¬ 
tices to the Supreme Court, isn’t there a good reason to expect that 
if Judge Bork were on the Supreme Court, that Justice Stevens’ ex¬ 
pectation would be correct, that he would fit in? That what little 
we have from Justice White would be correct, that he would fit in? 

Senator Eagleton, would you start with question one. 

Senator Eagleton. I think, Senator Specter, that you are pru¬ 
dent in pointing out the funding remedy the Congress has. 

In the Vietnam context, it took 7 years of attempted funding cut¬ 
offs to finally constrain the expansion and continuation of that 
war. 

Now, let’s translate it to the Persian Gulf. Suppose that the Con¬ 
gress passed a resolution in a rider to a bill: “No American ground 
forces shall be dispatched to the Persian Gulf without the permis¬ 
sion of Congress.” 

And suppose the President signed the bill because it was at¬ 
tached to an omnibus bill. The President then said, “To heck with 
it, I am going to dispatch ground forces”. I submit that there is a 
huge difference between trying to remedy something after the fact 
and something before the fact. 

That is, it is too late, after the forces have been sent. Once the 
flag is committed, as Senator Russell once told me in my early days 
in the Senate here—once that flag is committed—you more or less 
have to stick with the decision, or you are not red, white and blue. 
Senator Russell had very serious misgivings about the wisdom of 
the Vietnam War, but he would not do anything to constrain presi¬ 
dential power because the flag has been committed, the decision 
had been made, the troops had been sent. 

So the funding remedy is important. Funding cutoffs can be 
useful, but they are not the perfect remedy, if a President sees fit, 
on his own, to ignore a congressional restraint. 

Mr. Sunstein. I have no doubt that Judge Bork would fit in and 
be collegial. There is every reason to believe he would. On issues of 
executive power, the Court has frequently been split in the last few 
years, and the issues likely to come before the Court in the next 10 
years include the Special Prosecutor Act, which will probably be 
there in the next few years, the War Powers Act, possibly standing. 

I expect that Judge Bork would be a critical vote on those cases. 
Now whether he would change his views on executive power one 
can never be sure, but there is a pattern here which has held up 
during his work as a law professor, as a witness before Congress, as 
Solicitor General, and as a lower-court judge. The pattern is a con¬ 
sistent one. 

Senator Specter. Thank you. 

The Chairman. Thank you very much. Senator Leahy. 

Senator Leahy. Mr. Chairman, I am sorry. Senator DeConcini 
was here. 



2795 


The Chairman. Senator DeConcini suggested I go to you because 
you were here first. 

Senator Leahy. Thank you, Mr. Chairman. 

Senator Eagleton, it is good to see you. Your statement was, as is 
typical, pithy, succinct, to the point—even if my description of it is 
not—and I am pleased to have you here. I, too, am one of the ones 
that wish you were still on this side of the table. 

Professor Sunstein, I note in your testimony you say that Judge 
Bork’s firing of Archibald Cox was illegal, and you reach that con¬ 
clusion without reservation, is that correct? 

Mr. Sunstein. That is correct. 

Senator Leahy. Do you want to explain it to me one more time, 
because we had an awful lot of discussion of that, both in the ques¬ 
tioning by a number of Senators of Judge Bork, and discussions 
both with those people who support him and those who oppose him. 
And at times the definition became a moving target. So, would you 
explain why you are so categorical. 

Mr. Sunstein. I think this is actually fairly clear. The discharge 
of Archibald Cox was illegal because there was a regulation on the 
books, a Department of Justice regulation, that said he could not 
be discharged except for extraordinary improprieties. There were 
no extraordinary improprieties. 

Now it is true that there was a lower-court decision that decided 
this issue precisely along those lines. It was later vacated as moot. 

Senator Leahy. Now explain why you still point to that. You are 
referring to the Nader case? 

Mr. Sunstein. Yes. The decision was vacated as moot because 
Archibald Cox did not want his job back, not because there was 
any question about the issue. You do not need a court decision that 
is still on the books in order to conclude that the discharge was il¬ 
legal. 

I think there is no reasonable argument that the discharge was 
not illegal. The discharge was in violation of a Department of Jus¬ 
tice regulation that is not ambiguous. 

Indeed, the vacating of the decision in Nader v. Bork is especially 
uninteresting in light of the fact that the Supreme Court in the 
United States v. Nixon case approved the exact regulation under 
which the discharge had been held illegal. 

It is as if someone violates the law of speeding by going too fast, 
and is said to have violated it. You do not need an adjudication if 
the person was going 70-miles-an-hour in a 55-mile-an-hour zone. 

Now an important qualification. This was not a criminal act by 
Judge Bork, you should not go to jail for it, but it was inconsistent 
with the binding regulation, and therefore, it was illegal. 

Senator Leahy. And you say that was reaffirmed in U.S. v. 
Nixon ? 

Mr. Sunstein. United States v. Nixon quoted, with approval, the 
regulation forbidding the discharge of Archibald Cox except for ex¬ 
traordinary improprieties. 

Senator Leahy. Does that regulation have a standing of law? 

Mr. Sunstein. Yes. This is a very old principle. Regulations, 
while they are on the books, have the standing of law. Justice 
Frankfurter, incidentally, a conservative judge, was in the fore- 



2796 


front in establishing that principle. Regulations, while they exist, 
have the standing of law. 

Senator Leahy. Thank you. 

Thank you, Mr. Chairman. 

The Chairman. Senator Humphrey, and then we will come back, 
unless one of my—Senator Humphrey. 

Senator Humphrey. No questions. 

The Chairman. Senator Heflin? 

Senator Heflin. Senator Eagleton, your statement raises a lot of 
questions. You mentioned the fact that this could apply on the 
other hand on congressional standing, and you used the statement 
at the end that Senator Humphrey must consider and shudder that 
someday his colleague, Senator Kennedy, might be in the White 
House as an all-powerful President. 

You are not in the mood right now to start any drafting of any¬ 
body for President, are you? 

Senator Eagleton. Well, I just wanted to get Senator Hum¬ 
phrey’s and Senator Hatch’s attention. 

Senator Hatch. You did. 

Senator Eagleton. I had originally said “Senator Hatch,’’ but he 
was not here, so I substituted. 

Senator Heflin. Well, I have been thinking about what sort of 
situation might arise on something like that, and I was just think¬ 
ing that maybe we might have a constitutional requirement that 
the President has to submit a balanced budget by a certain date, 
and then he did not do it. We will say he is a Democratic Presi¬ 
dent. Then, under the concept of no standing, a Member of Con¬ 
gress could not bring any legal actions to require that submission 
of a balanced budget under your theory—that is, if there is no such 
thing as congressional standing. 

Senator Eagleton. Not under my theory, Senator; under Judge 
Bork’s theory. 

Senator Heflin. Well, yes, I mean under Judge Bork’s theory. 

Now let me ask you another thing. I have been reading some ar¬ 
ticles about the fact that this matter has become a political issue in 
the campaign, and it causes me some concern. I suppose that the 
political process involved in the appointment of judges has at least 
two endings, or two acts, or two standings. One, it appears to me 
that we have a great number of either judges or academicians who 
are campaigning long before the appointment occurs; that they 
either make speeches that would appeal to a President, or that 
they are doing certain things. And I think we have had several wit¬ 
nesses who have appeared and perhaps who will appear who have 
at least given us some thoughts that they might be campaigning 
for the Supreme Court by their actions. That is one aspect. 

The other aspect is that when an appointment is made, pro and 
con—and I am not criticizing either one, because frankly, my arm 
has been twisted on the right and then twisted on the left so much 
that both of them now are ready for transplants—but you have a 
campaign and all of this that is going on, ads being run, television 
ads, generated mail campaigns—all of this going on. 

Now, you being a former Senator and now being a professor, is 
this harmful to the Court? Is it harmful to the political process? Do 
you have any thoughts on this—and I suppose there is no way that. 



2797 


if you did think it was harmful, that it could be corrected. Does it 
end up being a healthy or an unhealthy situation? 

Senator Eagleton. Senator, it has not been harmful for 200 
years. This is not the first occasion nor will it be the last occasion 
when the politics/philosophy of a nominee are brought under close 
scrutiny. 

John Rutledge was nominated for Chief Justice by George Wash¬ 
ington. Washington was the single most popular President in 
American history. He literally packed the Supreme Court with 10 
Federalists. However, Rutledge failed for confirmation before a 
Federalist Senate because of his political philosophical position on 
the Jay Treaty. 

Roger Tauney, nominated by Andrew Jackson. Again, there was 
a tremendous political/philosophical fight with Clay, Calhoun, and 
Webster, all speaking and leading the opposition against Tauney. 
Nonetheless, in this instance he was confirmed by the Supreme 
Court. Tauney was a close crony of Andrew Jackson. 

The Brandeis nomination was intensely politicized/philosophized 
because of Brandeis’ distinctly liberal views back in the time of 
Woodrow Wilson’s Presidency. It was a most contentious confirma¬ 
tion fight based on philosophy. 

The Abe Fortas nomination, well-known to many Senators cur¬ 
rently in the Senate, was a politicized/philosophized nomination. 

This is not the first; this will not be the last. How else can the 
Senate judge a nominee? Judge Bork is an honest, decent, intelli¬ 
gent man; no one questions on that account. But each Senator 
must try to make a judgment on the philosophy of the candidate. 
The President does in nominating. The President’s main consider¬ 
ation in selecting Judge Bork was his well-identified views on 
almost every issue under the sun—either issues that had already 
been raised, or issues later to be anticipated. By the way, if Judge 
Bork gets on the Court, he will be boring. We already know where 
he stands on everything, because he has taken positions on almost 
everything under the sun. 

The President selects in a political/philosophical manner, and 
throughout history, the Senate has exercised its right to either 
affirm or reject in the same political/philosophical manner. 

Senator Heflin. My time is up. I would like to pursue that, 
though, as to whether it is healthy for the country, but go ahead. 

Senator Eagleton. It has not been unhealthy for 200 years. 

The Chairman. Senator Hatch? 

Senator Hatch. Welcome to both of you. It is good to see you 
again, Tom. Nice to have you back in these halls. 

Senator Eagleton. Thank you, Senator. 

Senator Hatch. Let me just say this. Professor Sunstein, you said 
that there is no record of Judge Bork deferring to Congress. I think 
that charge does warrant some examination, and I think it is just 
another distortion. 

Let me just say this in backing that up. Judge Bork’s critics have 
charged that in the area of separation of powers, whenever there is 
a conflict between the legislative branch and the executive branch. 
Judge Bork sides with the executive. Now, this is an effective argu¬ 
ment to make to those of us who are in the Congress, because it 



2798 


suggests that our own institutional interests are somewhat threat¬ 
ened by this nomination. 

The premise of the argument, however, that Judge Bork always 
sides with the executive is thoroughly contradicted by his record. 
And I would like to mention just two examples of occasions on 
which Judge Bork sided with us, the Congress, and against the 
President in matters of what I think were great import or signifi¬ 
cance. 

What is perhaps most extraordinary is that with respect to one 
of those instances, he was arguing on behalf of congressional pre¬ 
rogatives while he was serving as a lawyer in the executive branch. 
The issue in that case was the proper use of the pocket veto, the 
mechanism by which the President can veto a bill while Congress 
had adjourned and deprive us thereby of the opportunity to over¬ 
ride his veto. 

Now, Presidents have sometimes claimed this prerogative to uti¬ 
lize the pocket veto before the Congress has reached final adjourn¬ 
ment, such as during recesses or adjournments in the middle of a 
session, or between two sessions of the same Congress. Presidents 
Nixon and Ford both attempted pocket vetoes of this sort, and this 
strikes at the very core of our lawmaking authority, since expand¬ 
ing the availability of the pocket veto gives the President an abso¬ 
lute, unqualified, unchecked power to negate or nullify our votes. 

Now, it was then Solicitor General Bork who successfully argued 
within the executive branch against this use of the pocket veto. He 
did so despite powerful opposition within the White House itself 
and within the White House senior staff, who wished to extend the 
power of the President, or presidential power, at the expense of the 
Congress. 

Earlier in these hearings, we introduced into the record the 
lengthy and detailed memorandum he authored on this matter, 
which of course ultimately did carry the day with the then admin¬ 
istration. And as I mentioned before, what really is perhaps unusu¬ 
al about this incident is that he was Solicitor General at the time, 
a top executive of the executive branch, and yet he was arguing for 
a legal position that was detrimental to Presidential power because 
he believed it to be a correct position. 

I would like to mention just one other example of an instance in 
which Judge Bork sided with us against the President in a matter 
of critical importance. In this case the issue was the President’s au¬ 
thority to impound funds appropriated by Congress; in other words, 
to choose not to spend the money we had voted to spend. Under the 
1974 Budget Act, the President has the authority to impound, but 
subject to a legislative veto. The legislative veto, of course, was de¬ 
clared unconstitutional. The Reagan administration went into 
court, arguing that the President therefore had the authority to 
impound without being subject to the legislative veto. 

Now, Judge Bork was one of three judges before whom this argu¬ 
ment was made, and he rejected it decisively. He reasoned that an 
examination of legislative history demonstrated that we would not 
have given the President the power to impound if we did not know 
that we would also have had the chance to veto his impoundments. 



2799 


Accordingly, Judge Bork concluded that if the legislative veto is 
not permitted, then adherence to the congressional intent requires 
that the President be denied authority to impound as well. 

Again, I think this is an absolutely crucial case involving who 
would control decisions on spending, and Judge Bork sided with us, 
the Congress. 

So in sum, Mr. Chairman, I think that the charges against Judge 
Bork on these matters and on a whole raft of other matters reflect 
the same sort of selective reading on the record as the other 
charges that have been levelled against him. 

He has demonstrated, not only as a judge, but as an executive 
branch lawyer, as a high official in the executive branch, that he is 
sensitive to the need to maintain the delicate balance between the 
two competing branches of government, and that has led him on 
several occasions, for reasons of principle, to stand up for congres¬ 
sional initiatives and prerogatives. 

With that, I would also put into the record a memorandum to 
the Attorney General from the Solicitor General dated January 26, 
1976, regarding pocket vetoes, and just read one sentence in this 
latter—and it is right near the end, the last paragraph. 

“We agree,” Bork said, “that a practice of using return vetoes in¬ 
stead of pocket vetoes will make it more difficult for a later Presi¬ 
dent to use pocket vetoes. If the use of return vetoes is the sounder 
constitutional practice, however, that is not an objection, but a 
proper result.” 

So I think that the record is far different from what you have 
presented, Mr. Sunstein, and I just wanted to bring that up. 

The Chairman. Thank you very much. Although that was not a 
question, it was a statement, would you like to respond, sir? 

Mr. Sunstein. Yes, if I may, Senator. 

The Chairman. Certainly. 

Mr. Sunstein. My statement was not that Judge Bork has never 
been with the Congress. He has occasionally been with the Con¬ 
gress. My statement is instead that the pattern is clear. 

Now, in the two cases you have described, Judge Bork rejected 
positions that were very wild. For him to have taken those posi¬ 
tions would have been extreme indeed. Now, let me suggest- 

Senator Hatch. Well, there have been some very cogent argu¬ 
ments on the other side of those issues. 

Mr. Sunstein. I do not believe so, I do not believe so. He rejected 
positions that were very, very hard indeed to defend. 

But the pattern. Senator, is not controversial, and I think it 
would be a mistake to suggest that the pattern I have described is 
controversial. It is not controversial. The War Powers Resolution 
fulfills Congress’ constitutional duty to declare war. Judge Bork 
has said that it is probably unconstitutional. The Special Prosecu¬ 
tor Act is consistent with the text of the Constitution. Judge Bork’s 
objection to that Act went to the heart of the Act in 1973. 

With executive privilege, Judge Bork has suggested a very broad 
reading, broader than that of any lower court judge of whom I am 
aware. 

The objection to the Foreign Intelligence Act went in the face of 
the strong view of conservatives and moderates, of the intelligence 
community, and of the Department of Justice. 



2800 


Senator, the examples to which you have pointed are correct. 
Judge Bork is an honest person with a first-rate mind. But on exec¬ 
utive power, there ought to be no debate on this one; this one is 
clear. 

The Chairman. Thank you very much. 

Senator DeConcini? 

Senator DeConcini. Mr. Chairman, thank you. 

I have a question for Senator Eagleton, but before I get to that, I 
just want to point out that the memorandum that the Senator from 
Utah refers to was written, I believe, 14 or 15 months after that 
case. In one area, at page 10, it says, “and finally, we regard the 
case to be a particularly inappropriate vehicle for presenting to the 
Supreme Court the question of congressional standing to sue, a 
question the Court obviously would have to reach prior to dealing 
with the merits of the case.’’ 

I am not as convinced by the Senator from Utah’s argument. But 
on the other hand, let me ask you this question, Senator Eagleton. 

The Vander Jagt case was an interesting case. It turned out fa¬ 
vorable to how I would like to have seen it politically, but that is 
neither here nor there. Are you familiar with that case? 

Senator Eagleton. Yes. 

Senator DeConcini. And though Judge Bork held that there 
should not be standing, and the majority of the Court held there 
should be, I wonder where do you or Mr. Sunstein draw the line? Is 
there absolutely no area that the Court cannot say you do not have 
standing? And what bothers me about it is, sure, I think Congress 
should have standing, and I think Bork is way out there in the far 
extreme. On the other hand—and I do not have an answer—it trou¬ 
bles me that any of us can just bring a lawsuit today; go to the Su¬ 
preme Court, have standing, and thereby get a forum to argue our 
political views again even though we get dismissed. 

What are your thoughts on that. Senator Eagleton? 

Senator Eagleton. Well, Judge Bork, if he is to be followed, 
makes it pretty easy for everybody. He said no standing under any 
circumstances, any time, anywhere, anyhow, just across-the-board, 
and therefore we do not have to think. 

Judges, Senator, have to make judgments all the time. That is 
why they are called “judges.” And I would draw the line on re¬ 
stricting it to institutional issues. I do not think that every time a 
Congressman or a small group of Congressmen have some gripe 
against the President on some kind of frivolous or relatively minor 
matter, that they should be running down here to the federal dis¬ 
trict court, filing lawsuits and having those lawsuits heard. 

But where there is a disagreement on an institutional matter— 
and that is what the pocket veto case was all about—an institution¬ 
al matter between two branches of government that, as Professor 
Sunstein pointed out, could not otherwise get to court, except to 
grant Members of Congress standing, then I believe the court 
should resolve such serious constitutional disputes. 

Senator DeConcini. Okay. How about in the same branch, like in 
Vander Jagt? Would you grant standing in the Vander Jagt case? 

Senator Eagleton. For me, that is a little tougher, but I would 
grant it standing there as well. 

Senator DeConcini. You would. Why? 



2801 


Senator Eagleton. I stated it is a little tougher because instead 
of the two branches of government having a dispute, it is an intra- 
house matter. 

Senator DeConcini. I mean, here are 14 Republican Mem¬ 
bers— 

Senator Eagleton. I understand. 

Senator DeConcini [continuing]. Who say, “Gee, whiz, you know, 
we do not like what you- 

Senator Eagleton. “We got gypped on the allocation of minority 
seats.” 

Senator DeConcini. Yes, that is right. “And so, we are going to 
bring a suit.” 

And the Court said yes, and I have to somewhat agree with 
Judge Bork. I just wonder where you would draw the line. 

Senator Eagleton. Well, I think I would grant standing. 

Senator DeConcini. Would you draw it with five Members of 
Congress, or where? 

Senator Eagleton. Well, I do not think there is any magic in the 
number 5, 14, or even the 112, or whatever that just filed the suit 
recently on the War Powers Act. I do not think it is a battle of 
numbers; it is a battle of substance. The question should be what is 
the substance before the Court? I think very clearly, on the pocket 
veto matter, that that is a case in which standing should be al¬ 
lowed. Maybe it gets a little foggier and a little more grey on the 
Vander Jagt case. 

Senator DeConcini. I missed your testimony, Senator Eagleton, 
but will you repeat to me your analysis—I was looking at it here— 
why you feel the Founding Fathers made it very clear through the 
separation of powers that there had to be some standing, and yet 
Bork comes down clearly the other way. Is that correct? 

Senator Eagleton. Well, I think it is clear that the Founding Fa¬ 
thers wanted coequal branches of government—clear as a bell. I do 
not think Judge Bork really remembers that part of it. I think 
Judge Bork thinks we ought to have a powerful President, a virtu¬ 
ally impotent Congress, and nonexistent courts via judicial re¬ 
straint. I think that is sort of his summary of where we constitu¬ 
tionally ought to be. 

Now, as far as standing is concerned, Judge Bork makes it clear 
that he does not want congressional standing under any circum¬ 
stances. I repeat, when there is an institutional disagreement be¬ 
tween the two bodies- 

Senator DeConcini. There has to be somebody to- 

Senator Eagleton [continuing]. There has to be some way to re¬ 
solve the disagreement. And the only way is to grant standing, as 
in the pocket veto case—as did the majority of the Court in the 
Bowers case. Judge Bork was in the minority. 

Senator DeConcini. Would you care to comment, Mr. Sunstein? 

Mr. Sunstein. Well, the court on which Judge Bork sits has 
drawn a line between objections that go to the process by which 
laws become law, and objections to law enforcement. And that 
seems to me to make some sense. In the pocket veto, there was a 
constitutional impasse over whether the law was a law. And there, 
you need a lawsuit to get that one resolved. 

Senator DeConcini. Thank you. 



2802 


I want to thank, Mr. Chairman, if I can, thank the Senator from 
Missouri for being here with us. We welcome you back. I hope we 
do not have to wait for another Supreme Court nominee to have 
you come and testify. 

Thank you, Mr. Chairman. 

The Chairman. Senator Simpson? 

Senator Simpson. Thank you, Mr. Chairman. 

Professor Sunstein and Senator Eagleton, who—and I must say 
no one has called me “Stretch” since you left here—you both bring 
up this issue of congressional standing. And that is one that vexes 
me. It is a troublesome issue. Senator DeConcini speaks of it. 

At least Judge Bork is being quite specific and up front and 
maybe, as you say, blunt, but all I can say is I am not going back 
through the reams of history; I am just talking about my 9 years 
here. If it is going to be the case from now on—and it is more and 
more cooking along all the time—that if the Supreme Court of the 
United States is going to become entangled in all major “political” 
court battles between the Executive and Congress, then the United 
States Supreme Court will in fact become the dominant branch of 
this government. 

Now,' that is the way that that is played out to its final act— 
having the power to rule over the acts of Congress and over the 
acts of the Executive, they will resolve those disputes, and those 
disputes will be filed by the bale in that Court and in lower courts, 
hoping to get on up. 

Now, I do not know whether that concerns you, but it sure con¬ 
cerns me. And you know, I hate to see that distortion come into the 
argument just because Judge Bork happens to be the focal point 
which gives rise to that kind of exciting theory, which is not excit¬ 
ing at all, because it simply makes the United States Supreme 
Court the dominant branch of this government, and nobody had 
that in mind 200 years ago. I will share that with you. 

And Tom, you have seen this operation before and know how we 
go through these and these confirmation processes; and you know, I 
think, what will happen in the future ones—I have said this—that 
in the future ones, they are going to find the most bland people to 
go on the Supreme Court, people who do not write articles, do not 
give speeches, do not campaign for the United States Supreme 
Court—and I think people do campaign for the United States Su¬ 
preme Court; I think Judge Bork has done that, and I think Profes¬ 
sor Lawrence Tribe has done that. And I hold them both extremely 
high. It would be very difficult to reject Lawrence Tribe as a Jus¬ 
tice of the United States Supreme Court, and I think he will be 
eventually presented. 

But let us be honest in this thing and try to just deal with it in a 
nonobsessive way. 

I will finish my question. Professor Sunstein, you said that Pro¬ 
fessor Bork was an extremist, in response to Senator Thurmond’s 
question, and not a moderate at least on this congressional powers 
issue. Senator Specter then asked if he is an extremist, how will he 
be effective in influencing his fellows on the Court. And in reply, 
you said that they had split, five-four, and that is why. 

And my question is, if there has been a five-four split on these 
issues of congressional powers, how can you possibly refer to Judge 



2803 


Bork as an extremist if four or five sitting members of the United 
States Supreme Court apparently completely share his views on 
these congressional powers issues? That just will not wash. 

Senator Eagleton. May I respond to the first part of your ques¬ 
tion, and then Professor Sunstein to the last part? 

Senator Simpson. Sure. 

Senator Eagleton. The first part was your observation. Senator, 
that the Supreme Court had become the almighty branch of gov¬ 
ernment, more powerful than the Presidency and the Congress. I 
would question that. 

The Supreme Court is powerful—not only did the Founders want 
it that way, but Chief Justice John Marshall made it that way. In 
his 2414 years, Marshall staked out the territory of the Supreme 
Court where it could do the very things that you pointed out; it 
could declare, in a proper case and controversy before it, a law of 
Congress to be unconstitutional. And for 2414 years, he protected 
and guarded the Constitution and made it live. So that the courts 
are coequal with the President—not superior, not inferior, but co¬ 
equal. 

And so any gripe that you may have, Senator Simpson, about the 
power of courts, I think is a gripe with John Marshall in Marbury 
v. Madison , not a gripe with any subsequent Chief Justice of more 
modern times. 

Senator Simpson. Thank you. 

Mr. Sunstein. I did not use, and I do not like the word “extrem¬ 
ist”. What I said was that Judge Bork’s positions on these issues 
are not moderate positions, and I will stick to that. 

The notion that the cases will be split so that Judge Bork would 
need four allies, that is correct, but Senator, I think that argument 
proves too much. If it were the case that anyone—it is the case 
that no single Justice can render Supreme Court decisions—but 
that would mean that anyone should be confirmed, no matter how 
extreme his or her views, because that person would need to get 
four allies. 

I think one should count one-by-one. Justice Douglas was in the 
view of many an extremist on the Supreme Court. That is a contro¬ 
versial position. But whether or not it is so, Justice Douglas was on 
the extreme wing of the Court, and he was extremely influential. 
There is no question about that. 

A ninth judge, especially at this point in time—and this is the 
critical point—the ninth judge will be of huge importance. If it is a 
judge who has positions that are not moderate on a question like 
separation of powers—and that is my view of his positions thus 
far—that is important for the Senate to know, I believe. 

Senator Simpson. Well, I thank you, but I want you to look at 
the record. You used the word “extreme”; I did not. 

The Chairman. Thank you very much, gentlemen. I appreciate 
your time and your participation. 

Our next witness will be somewhat out of order to accommodate 
his schedule. Unfortunately, we do not have any testimony. We did 
not expect him to come now, but we are always happy to have him 
here. 

Mr. Griffin Bell is a last-minute addition to today’s schedule, at 
the request of the minority. He is a former federal judge, a former 


88-374 0 - 89-4 



2804 


Attorney General under President Carter, and currently a partner 
in the Atlanta law firm of King and Spaulding. 

Former Attorney General Bell, it is good to have you here. Why 
don’t you remain standing, while I swear you in? Do you swear 
that the testimony you are about to give is the truth, the whole 
truth, and nothing but the truth, so help you, God? 

Mr. Bell. I do. 

The Chairman. Thank you. Judge. Would you begin with your 
statement? 



TESTIMONY OF HON. GRIFFIN BELL 

Mr. Bell. Well, I do not have a statement. I tried to write out a 
few thoughts here. 

Some weeks ago, Judge Bork called me and asked me if I would 
consider testifying for him. I have known Judge Bork for some 
years, and he and I were lawyers on the same side of a lawsuit for 
some months, maybe a year, just before he was appointed to the 
court of appeals. 

So I told him I would think about it. Maybe 2 or 3 weeks after 
that, Mayor Andrew Young, who is my friend and client, came to 
see me and said he was very worried about the Bork nomination 
because the black community had become almost in fear that their 
rights were going to be taken away from them. And he asked me 
what I thought about the situation in general, and we had a long 
discussion about it, and I told him I was inclined to the view that 
Judge Bork would not take anyone’s rights away from them, but 
that I would like for him to meet with Judge Bork and hear Judge 
Bork say that. 

I called Judge Bork and made an appointment for him. I then 
left the country—not for that reason, but for other business rea¬ 
sons. 

When I came back, I found they had never met. So I have in¬ 
quired this morning about that, and Mayor Young sent me a copy 
of the statement he made here to the committee, but I have not 
talked with him anymore. He sent me a message that he came to 
testify because he felt like he should and should say something. 
What happened is he never called Judge Bork to meet with him. I 
do not know if that was a good thing, a bad thing, or a proper 
thing, even, but I thought that it was something to be concerned 
about; that Mayor Young, for whom I have a very high regard, was 
worried. 

I have taken it on myself to read a lot of the things that Judge 
Bork has written or said. I think I have a pretty good feel for his 
views on privacy, antitrust, particularly in foreign intelligence, the 
executive power to formulate foreign policy, and whether there is 
such a thing as a political question which cannot be ruled on by 
the Court—something that this last panel was talking about. And I 
am prepared to speak to those things. 

I decided that I would not read anything that was sent to me by 
the White House; but I did read, and decided to do this—I made 
this as a conscious judgment—that I would read what Senator 
Biden sent me, which was something written by two professors, 
whose names are Peck and Schroder, which in their documents, 
says it was reviewed by Floyd Abrams, Clark Clifford, Walter De- 
linger, and Lawrence Tribe. Senator Biden wrote me a note and 
said he thought I would be interested in it, and particularly I ought 
to look at the section on privacy and antitrust. I have done that, 
and I am prepared to address that paper. 

I must say that the paper, while excellent, seems to set out the 
qualifications for a Democrat, somebody that a Democratic Presi¬ 
dent would have nominated, and to see if that President met the 
test that maybe President Carter would have wanted the Supreme 
Court to meet. 


( 2805 ) 



2806 


It does not address whatever the test ought to be for somebody 
put up by a conservative Republican who ran on that issue. That 
was an issue in the last campaign. And that is the problem I have 
with the paper. I do not think it makes out Judge Bork to be any¬ 
thing more than a conservative. I was looking to see if he was a 
radical of some sort. I would not vote for a radical to go on the Su¬ 
preme Court. But on privacy, I find that his views, for example, on 
the Griswold v. Connecticut case, are precisely the views that Jus¬ 
tice Black and Justice Stewart had—neither of whom have I ever 
thought of as a radical. 

I find that I do not agree with Judge Bork on his views about the 
Griswold case; I do not agree with the majority opinion written, 
the plurality opinion, written by Justice Douglas. I find myself in 
agreement with the special concurring opinion by Justice White. 
Justice White had found this right of privacy as it was there de¬ 
scribed, not some privacy in the abstract, but the facts, the facts of 
the sanctity or the merits, he found that that could be a part of the 
concept of liberty in the 14th amendment, which you could protect 
by the due process clause of the 14th amendment. Justice White 
then dissented in Roe, because he did not find abortion to be in¬ 
cluded in his concept of liberty under the 14th amendment. He also 
dissented in the Hardwick case, which was a sodomy, a homosexual 
case, on the grounds that homosexuality was not a right of privacy. 

So I point that out to show that reasonable judges can differ 
about what privacy means. We need to disassociate ourselves from 
the idea that there is any abstract right of privacy. Privacy is just 
a name given to whatever the facts may be that are before the 
court—in one, it was a contraceptive law in Connecticut; the next 
one was abortion; the next one was the sodomy law. We do not 
know what the next thing will be. 

But the point I guess I am trying to make is that Judge Bork's 
views seem to me to be the same as those of Stewart and Black, 
and my view would be the view of White, who did not join in the 
majority opinion, but concurred in the result. 

One of the best things in all of those opinions is what Justice 
Harlan wrote. He said he did not concur in the opinion of the ma¬ 
jority at all, but he did concur in the result that the law should be 
stricken. He tells in there, he lays out the best rule that I have 
ever seen on how you decide what a right is under liberty and what 
a reasonable concept is under liberty; how you administer that 
right. And it is not due process in the substantive sense, but it is 
just protecting liberty. And he says you have to have an educated 
people who understand history and the traditions of our nation, 
and you take all those things plus the facts into consideration, and 
then you make your decision. 

One of the things I like about Judge Bork is he is not only 
bright, but he is contemplative and reflective and sensitive, it 
seems to me, and he is working all the time to compare whatever is 
before the Court with the Constitution, and he is trying to find 
things under the Constitution. I like that about him. 

I was once a judge myself, and we had a brilliant judge on the 
court, a young judge, and one of the older judges asked about him 
and said, “What do you think about Judge So-and-So?” 



2807 


He said, “Well, he seems to me to have a brilliant mind, but it is 
loose at both ends.” 

I do not want a judge who has got a mind that is loose at either 
end. I want him to know what the Constitution means. I want him 
to understand that not all of my rights come from the Constitution. 
The people that were living at the time the Constitution was adopt¬ 
ed had a lot of other rights. They were trying to save some of the 
rights they had by the Bill of Rights. They were not trying to say 
those are the only rights we had. And that is where this right of 
privacy comes in. 

We have the right to freedom of association, the right to travel. 
One of the great rights we have that has never been developed, 
that has been mentioned in the Supreme Court, is the right to be 
let alone, and as society becomes more complex, we will be think¬ 
ing more and more of the right to be let alone. That will not be 
found in the Constitution, but it is certainly a right. 

We get a lot of those rights from the common law. Some people 
call them natural rights. I guess Jefferson probably would have 
spoken of some of these rights as natural rights, but they are 
rights that we all have. 

We have some rights because we get them under a State govern¬ 
ment, some because we get rights under the federal government, 
and we can’t just go by what people said or what the Founding Fa¬ 
thers said. We have to take into mind all of the amendments to the 
Constitution, particularly the war amendments, 13th, 14th, and 
15th, and what the 14th says about life, liberty and property and 
the due process clause to protect our rights. 

We have to take into consideration the 19th amendment which 
gave women the right to vote. That changed the our whole think¬ 
ing toward women. It didn’t just happen in America. It happened 
all over the world. I was just in Turkey. In 1924, Ataturk freed the 
women of Turkey, and it has made a great difference in Turkey 
today over what it was then. That in a sense is what happened in 
this country. Women now have the same rights as men, and 
should. We do that under the equal protection clause. 

Those are my views. I think Judge Bork is in the mainstream. I 
wondered a good deal about if we do not get Judge Bork, who will 
we get? Here is a very bright person. We have to be very careful in 
this country—we do it from time to time—we have become anti-in¬ 
tellectual. It would be easy to get somebody confirmed who has 
never done anything, has never taken a controversial position on 
anything. But that is not the kind of person we want. We want 
somebody who has written a lot and who has said a lot and who 
has been examined about what he has written and said. And when 
all is said and done, if we think he is believable, then he is no more 
than a conservative. And the President has a right to put up a con¬ 
servative. And if Judge Bork is not confirmed, he will put up an¬ 
other conservative. If that man is not confirmed, he will put up an¬ 
other one. So I would not be willing to let a good man go when I do 
not know who else is coming down the line. 

I would myself vote to confirm Judge Bork, and I do so on the 
view that he is sensitive and he has never taken any right away 
from anyone. And he may be conservative in the sense that he will 
not find new rights, but I do not know what facts are coming up 



2808 


that might give rise to a new right. But I do not see any sign that 
he would take any right away from anyone. 

As far as these foreign intelligence cases and the power of the 
Executive, I think we have to be very careful we do not throw our 
Constitution out of balance by letting the Supreme Court become 
the arbiter between the Executive and the Congress. I lost some of 
those cases and won some when I was Attorney General, but I am 
very familiar with what a political question is. Justice Brennan 
wrote in Baker v. Carr quite a dissertation on what a political ques¬ 
tion is, and I think a lot of our journalists and professors, even, 
should go and read that opinion so we know that they come back to 
the view that the Supreme Court is not supposed to referee be¬ 
tween the Congress and the President in all matters. 

I think I have gone on too long, Mr. Chairman. 

I want to congratulate the committee on the reasoned approach 
you have taken in the hearing. I think you had every right to go 
into all the things that you have gone into. I have never seen a 
better hearing than what is being conducted here in the Bork 
matter. 

Thank you. 

The Chairman. Thank you very much, General. 

Let me begin by reminding you that, although I am told it is an 
old Yiddish expression, “Better the Devil you know than the one 
you do not,” and that seems to be a refrain we have heard several 
times—not that Judge Bork is a devil, but better the person you 
know than the one you do not; we do not know who will be sent 
next if he is rejected. But it seems to me my responsibility as 
Chairman of this committee is to deal with them one at a time. 

Did you have an opportunity—I know you were necessarily out of 
the country—did you have an opportunity to hear and/or review 
any of Judge Bork’s testimony? 

Mr. Bell. I did not review his testimony, but I read everything 
that the New York “Times” carried that he said, and then some 
other papers, but I went back and got the New York “Times” and 
had everything copied that had happened at the hearing, and read 
them all in one sitting. So it was quite a bit of reading. 

The Chairman. You—and I am not being facetious when I say 
this. General—you make an extremely compelling case for Judge 
Bork and an extremely compelling case against Judge Bork, all at 
the same time, it seems to me. 

You point out that—what I pointed out when I opened up the 
hearings—that I believe firmly that my rights, as a human being, 
are not derived from the Constitution. I have them because I am. 

And as you point out quite eloquently, more eloquently than I, 
that not all of your rights are conferred upon you by the Constitu¬ 
tion, and you indicate that there are others, and you list them, 
some of them, including the right to be left alone, as you point out, 
in years to come, will become more compelling, or more controver¬ 
sial. 

And you then said that “Although he will not take any existing 
rights away, he will probably not acknowledge any new rights.” 

And quite frankly, that is the crux of my concern. I would point 
out that Justice Stewart, who you quote, who you mention, and 
Justice Black, and every other Justice that I am aware of, has at 



2809 


one time or another recognized that there is a right under the lib¬ 
erty clause, or under the substance of due process, or under any 
other aspect of the 14th amendment. 

And in constant questioning on the issue of privacy, the general 
right of privacy, to the extent there is one, and enumerated rights 
of privacy, Judge Bork, unlike any other Justice I am aware of, 
finds those rights as to not be existing unless they are enumerated. 

He goes back and he does not—this is the only area that I am 
aware of, unlike in the area of free speech, first amendment; 
unlike in the area of affirmative action; unlike several others in 
questioning—it is the only area that he does not qualify or change 
his views. 

And so he says, under constant questioning—and I apologize be¬ 
cause I was not aware you were going to testify next and I do not 
have the record in front of me—but he says time and again that 
our rights are protected. Rights of privacy he finds in the fourth 
amendment. He reads out of the Constitution the ninth amend¬ 
ment, just reads it out. 

And he goes down the list of where they are found. He talks 
about the first amendment, there are basic privacy rights that are 
encompassed in that, and so on. 

But he does not, unlike Stewart, who, in Roe v. Wade found a 
right of privacy; unlike Black who in fact found the notion of due 
process to have meaning in Bolling v. Sharpe. 

Unlike others, he is the only one that I am aware of—and I am 
going to stop and ask you to respond—the only one I am aware of 
that does not find any generalized writing in the liberty clause. He 
rejects substantive due process. 

Now admittedly, he does not go back and say “I will overrule 
every one of those cases.” He does not speak to that. 

But can you comment on the fact that he seems to be totally in¬ 
consistent with your view, and I asked him specifically. 

Mr. Bell. Well, you know, that last case you cited, Bolling v. 
Sharpe makes the point I am trying to make, and that is that there 
is no abstract right to privacy, for example. 

Bolling v. Sharpe, they read an equal-protection clause into the 
fifth amendment. 

The Chairman. Correct. 

Mr. Bell. In the Washington school case. 

The Chairman. Correct. 

Mr. Bell. And that is a race case. 

The Chairman. Correct. 

Mr. Bell. That was the only way they could address the District 
of Columbia where they had segregated schools- 

The Chairman. Correct. 

Mr. Bell [continuing]. As to find an equal protection, federal 
right. 

The Chairman. Right. 

Mr. Bell. And they had no trouble doing it, but they could not 
do it against the federal government under the 14th amendment. 

The Chairman. Correct. 

Mr. Bell. So they reached out and said that due process has got 
to mean, has got to include an equal-protection right in a race case. 



2810 


I would imagine that Judge Bork would probably agree with 
that. On race cases, I never find anything unusual about him in his 
views. 

I think Judge Bork is trying to say—and he can speak to what 
his views are better than I—but I think he is trying to say that “I 
cannot find any abstract right to privacy in the Constitution.” 

But there can be factual situations which would be protected by 
the due-process clause of the 14th amendment. They would either 
come under liberty, or life, or property. 

The Chairman. Judge Bork does not say that, Judge. I wish you 
would read his testimony. He specifically does not say that, and my 
time is up, but he specifically rejects that. 

Mr. Bell. I read he said that he had not excluded all circum¬ 
stances. There might be some other basis, he said. 

The Chairman. He said he had not thought of any, and he has 
been writing about it for 26 years. Judge, but my time is up. 

Senator Thurmond. Well, let him finish. 

The Chairman. Oh, yes, sure. I did not mean to cut you off. 

Mr. Bell. No. All I was going to add was that I did not mean to 
say he would never find any other right. I do not think we have 
any more rights, that have not been dealt with, that are spelled out 
in the Constitution. We have to get under this liberty concept, or 
property concept, that sort of thing. And in that respect he is con¬ 
servative. 

The Chairman. Well, I just hope he finds those. I am not looking 
for any new ones. He has not found the old ones yet. But I yield to 
my colleague from South Carolina. 

Senator Thurmond. Thank you, Mr. Chairman. 

Judge Bell, we are very pleased to have you here. I recall when 
you were Attorney General and you served ably and well. We are 
proud of you. 

Mr. Bell. Thank you. 

Senator Thurmond. Now do you feel that Judge Bork is in the 
mainstream and is not an extremist? 

Mr. Bell. I do. I do not consider him to—well, I would say radi¬ 
cal, but an extremist and a radical is the same thing I guess. I look 
on the, about 15 percent on each end, as being extremists, and radi¬ 
cals, there is not that many. 

Senator Thurmond. There has been a lot of talk here, and a lot 
of questions going into issue after issue after issue. The main thing 
I think the public is interested in—is he an extremist, way out, one 
way or the other? Is he going to be fair? Is he going to be reasona¬ 
ble? Is he going to be just? 

How do you feel? 

Mr. Bell. Well, as I say, if I was in the Senate I would vote for 
him. I think he is a conservative, but he is principled, he is ration¬ 
al, and I think that he would not wear any one’s collar. I doubt 
President Reagan knows what he would do, and I like that. I like 
to see a man go on the Court who is going to be his own judge, be 
his own man, and I think that is the way it is going to turn out. 

He is going to do whatever he thinks the Constitution means, 
and he is searching all the time. He has grown from the time he 
was a young law professor to now. He has grown a great deal. He 
has changed his mind about things. I like that. 



2811 


I hate to see someone who is so rigid that they never change 
their mind. So I think he is in the mainstream myself, on the con¬ 
servative side. 

Senator Thurmond. Do you feel that he has the qualities the 
American Bar Association considers for a Supreme Court Justice, 
and that is, integrity, judicial temperament, professional compe¬ 
tence? 

Mr. Bell. Well, he has all of those. No one has contended he 
does not have those qualities. I think everyone would be unani¬ 
mous on that. The American Bar apparently got off into something 
different, which is they have got a way of defining temperament. If 
you are a conservative, you have got bad temperament. I hate to 
think about when we get a Democrat back in, we are going to have 
the same problem. 

Then, if you are a liberal, you have got bad temperament. That 
is no way to select, to pass on anybody’s qualifications. I am sorry 
to see that they have done that. 

Senator Thurmond. You feel that he has the courage, and the 
dedication, and the willingness to make a good Supreme Court Jus¬ 
tice? 

Mr. Bell. I do. 

Senator Thurmond. Do you know of any reason that this Senate 
should turn him down, this committee should turn him down? 

Mr. Bell. I do not know of any reason, and I have looked for one, 
but the only reason I can see is he is too conservative, and you 
hope the next person will not be as conservative. But that would 
not be a good reason. I do not think that any Senator would vote 
on that basis. 

I do not know of any reason, to answer your question. 

Senator Thurmond. If you were on this committee and in the 
Senate, would you vote for him for the Supreme Court of the 
United States? 

Mr. Bell. I have already said I would. 

Senator Thurmond. Thank you very much. That is all. 

Senator Kennedy. Judge Bell, I, too, join in welcoming you back 
to the Judiciary Committee, and remember many different occa¬ 
sions when we worked closely with you. You have had a distin¬ 
guished career as an attorney, as a judge, and as Attorney General. 

So we welcome you back, and we take your views seriously, and I 
think you have gathered that, certainly, by the reaction from the 
members of the committee. 

I think many of us can look back into the period of the early 
1960’s as a time of turmoil and unrest, and I think you were one of 
the really important voices in Georgia, and in Atlanta, of modera¬ 
tion and progress, particularly on the race issues. 

And you drew to mind today your own conversations with Andy 
Young, who was a young leader then and a strong believer in non¬ 
violence in trying to strike down the barriers of discrimination in 
our society, and he came here and made an eloquent statement 
about the New South. 

Chesterfield Smith spoke about the New South as well. And the 
concern that Andy Young had talked about is the desire of not 
going back and refighting old battles, reopening old wounds. And 
whether a person that had taken such a harsh position on the Civil 



2812 


Rights Act of 1964, in terms of public accommodations—what 
would Atlanta look like today if they did not strike down the prohi¬ 
bitions in terms of the hotels and the railroads, and the- 

Is that 5 minutes? 

The Chairman. It was not reset, the staff says. I might note your 
staff and my staff are both doing it. I am not sure what it means. 

Senator Kennedy. To refight the old battles, and they were 
pointing out the areas of public accommodation, the discrimination 
in employment, the Congress’ power to strike down the literacy 
test which had been used to deny people the right to vote in the 
South. 

Chesterfield Smith made a powerful case about the outcome of 
the one man, one vote rule, and how it moved power from Wash¬ 
ington back into Florida. 

And the sense that I gathered from the former distinguished 
president of the Bar Association, Chesterfield Smith, and by Andy 
Young, with the extraordinary prosperity and growth, and, in deal¬ 
ing with the problems of race in that community better than many 
cities in the North, including parts of my own State—that the real 
kind of question, whether they should really take this risk, wheth¬ 
er they should take this chance, whether they should really be will¬ 
ing on the issue of civil rights which has scarred the country— 
whether it was at the time of the Constitution of the Civil War, or 
the early 1960’s—that issue is behind us in many respects. It is 
present in other respects, but it is behind us. 

Would we really want to risk going back to those old days? And 
let me just say, finally, Judge, you know, I have been on this panel 
for a number of years, and voted for Warren Burger though be had 
a different political philosophy than I do. I voted for Justice Ste¬ 
vens and voted for Justice Powell. I voted for Justice O’Connor, 
and voted for Justice Blackmun. I voted for Justice Scalia. 

And I hope we are not going to get back into a situation where 
just because we have this individual, nominated by this President, 
that we have to raise what I think is really not an appropriate 
kind of a recommendation. As you well know, we have had 300 fed¬ 
eral district and circuit court judges proposed by this administra¬ 
tion and there have been less than ten that have been challenged. 
This one is, and for important reasons, as you have heard, on pri¬ 
vacy, and civil-rights questions, on first amendment issues, and on 
the role of the Congress and the Executive—all serious issues. 

But let me just go back to the other question. What would the 
South of today, your home region, look like if the positions that 
Judge Bork had taken had been sustained, had been the majority 
opinions in the Supreme Court? And had they been positions that 
had been maintained by the Congress? 

Mr. Bell. Well, the public-accommodations law which he opposed 
at the time, there were thousands of people, lawyers or judges who 
opposed it, and one of the great things Senator Russell ever did for 
our section was when the Congress passed the public-accommoda¬ 
tions law, even before the Supreme Court upheld it. 

He said that this is now the law, and it is up to everyone in the 
South to obey it. That turned the tide. People started obeying the 
civil-rights law. It was accepted. We never went through the same 



2813 


thing with the public accommodations that we had to go through 
with the school cases, for example. 

I would think that Judge Bork, having that view, was a—well, a 
lot of people had the same view. That is over with. I think he- 

Senator Kennedy. Poll tax? 

Mr. Bell. Poll tax. 

Senator Kennedy. One man, one vote. Public accommodations. 
Employment. 

Mr. Bell. Well, on one man, one vote—as I understand his posi¬ 
tion—that you do not have to have precisely one person, one vote— 
not one man, one person. That you might have a variance on a re- 
apportionment of 2 percent, 5 percent. We wrote many opinions 
saying that in the fifth circuit, and then the Supreme Court cor¬ 
rected us and told us we were wrong. It had to be precisely that. 

On the poll tax, no one could argue that you could not have a 
poll tax for a dollar. It would not be racially—that would not have 
anything to do with race, but it would be such a nuisance that you 
would not want to do it anyway. 

But the poll tax was—in fact the way it was administered in the 
South, was used to keep blacks from voting. I was in a lot of voting 
cases when I was a judge. I know a lot about that. 

But if you were a professor, sitting around somewhere, arguing 
in the abstract, that you could have a dollar poll tax, you would 
probably say, well, you can have a dollar poll tax. If I do not know 
any other facts. That is where a lot of these things come from, I 
think. I doubt he would be right now saying he wanted to put a 
poll tax back on. If he did, it would be like saying I do not wish to 
be on the Supreme Court. I do not think he would do that. 

Senator Kennedy. My time is up. 

The Chairman. Senator Hatch. 

Senator Hatch. Well, Judge Bell, it is great to see you back here 
again. As you know, I have great affection for you and appreciate 
the leadership and the service that you gave. 

You have had a very distinguished career from entering private 
practice in Savannah, Georgia in 1948, and in 1953 joining the law 
firm of King and Spalding as a partner. You became chief of staff 
in the Georgia Governor’s office until in 1961 you were appointed 
by then-President Kennedy to the Fifth Circuit Court of Appeals. 

So you have had a distinguished record there, where you heard 
some 3,000 cases and authored over 500 opinions. And you served 
with great distinction on the bench for 14 years, before stepping 
down to go back to your old law firm back in 1976. 

And then, in 1977, you were nominated by then-President Carter 
to become the Attorney General of the United States, and I for one 
was here, and I want to tell you how much I appreciated the serv¬ 
ice that you gave to this country. 

Now you, during that period of time, carefully reviewed all kinds 
of judicial candidates for positions. Am I correct? 

Mr. Bell. I did. 

Senator Hatch. In fact President Carter had almost as many ap¬ 
pointments in that 4-year period as any President in history. 

Mr. Bell. I personally reviewed over 200, and President Carter 
had, I think, 260 or 270. 

Senator Hatch. That is right. He had- 



2814 


Mr. Bell. Not as many as President Reagan, but he had a sub¬ 
stantial number. 

Senator Hatch. He surely did. So you are fully familiar with the 
process and what type of people should go on the courts in this 
country. 

Mr. Bell. Well, I never went through the appointment of a Su¬ 
preme Court Justice. 

Senator Hatch. I see. 

Mr. Bell. President Carter did not have a chance to appoint 
anyone to the Supreme Court. 

Senator Hatch. But my point is you have had a lot of experi¬ 
ence— 

Mr. Bell. All of the judges. 

Senator Hatch. All right. You were involved, as I see it, in a 
number of judicial appointments in the Carter administration. 

Have you ever seen, of those many appointments—did you ever 
see a campaign with such special-interest group pressure like that 
which is surrounding this present nomination? 

Mr. Bell. I did not, but I well remember the Haynsworth nomi¬ 
nation. I was a judge myself then, and I remember all about the 
Haynsworth case because he was a Southerner and we were all 
pulling for him. I remember that. 

You see, during my time as Attorney General, we did not have a 
Supreme Court appointment. People get fired up about a Supreme 
Court appointment. It is easy to write about it. It has got a lot of 
glamour to it, a lot of appeal, and it just sort of builds up. It takes 
on a life of its own. 

Senator Hatch. But I think what I am getting to is this: Over 
the past several weeks, we have heard arguments by some of Judge 
Bork’s opponents that he should not be confirmed because he will 
vote, as they see it, “the wrong way” in a particular case or on a 
particular issue. And we have had a number of particular cases or 
issues that they think he might vote “the wrong way” on. 

Mr. Bell. If we could get President Eisenhower to come back, he 
would probably have a few words to say on that. 

Senator Hatch. I think so, too. 

Mr. Bell. Or Teddy Roosevelt about Oliver Wendell Holmes. I 
mean, who knows how somebody is going to vote. You put them on 
the Court to use their best judgment. 

Senator Hatch. Well, I am troubled by the implications of such 
an approach to the whole confirmation process, and specifically 
with the Supreme Court. So I was wondering if based on your 14 
years on the bench and your total experience, including your expe¬ 
rience as an Attorney General, if you would comment on what 
effect you think this single issue approach to confirmations might 
have on the independence of the Supreme Court. 

Mr. Bell. Well, I have not really worried about it until today. 
When I got up this morning and read in the paper that the polls 
showed that the majority of the people are against Judge Bork, it 
struck me that we have abandoned the constitutional process for 
confirming judges, selecting and then confirming judges, and that 
we are going now into the Gallup poll business. 

Too much in recent times, I think, has the President and the 
Congress gotten into the habit of trying to find out what the people 



2815 


want before they vote. I think this is one of the worst things going 
on in our country. Now, if we are going to pick Supreme Court Jus¬ 
tices by what the people want, we are going to be in bad shape. The 
people do not know as much as the members of this committee 
know, and it is up to the committee. Mr. Jefferson said that in a 
representative form of government you are elected and then you 
owe the people your best judgment. You do not need to get a poll 
on how to vote. That has nothing to do with it. You are supposed to 
use your best judgment. 

That worries me now, that we are running polls daily now to see 
what the people want for the Supreme Court. 

Senator Hatch. Even the polls are mischaracterized, but the one 
this morning that was mentioned was the Lou Harris poll. I chal¬ 
lenge anybody here to look at the exact questions that were asked 
by Mr. Harris. He did exactly the same thing to now Chief Justice 
Rehnquist. It was so bad, it was so utterly detestable and irrespon¬ 
sible that even the media back here did not print—at least I did 
not see it printed on the Rehnquist thing. 

Mr. Bell. I am not worried about that kind of publicity having 
any effect on this committee. I would be more worried about it af¬ 
fecting the Senate at large. 

Senator Hatch. Well, you are right about that. 

Mr. Bell. This committee has gone into everything. You have 
had a very detailed hearing. 

Senator Hatch. Well, let me make one other comment. I think 
the people out there, all these special interest groups, if you look at 
what they are and who they are, you find that there is a lot of con¬ 
cern, because they know that Judge Bork would be a very tough 
law-and-order judge. He would not put up with the drug pushers 
and the problems that we have in this society today. I think they 
know he is going to be a strong supporter of the constitutional 
death penalty. There is no question that there have been all kinds 
of other problems that he would probably come down hard on por- 
nographers. You could go on and on, the excessive regulation of 
small business. 

This is the side that is not being told here, that he would be the 
type of judge that the people in this country have wished for for 
the last 25 years. But because of these special interest castigations 
and, I might say, vilification and disinformation, because they have 
been distorting his record, they have been distorting his cases, they 
have been distorting what he says. Of course, they are taking it 
away from the real issue of getting a judge that might be somebody 
who could help turn the mess around in this country, especially 
criminals lawyers. 

Mr. Bell. That has all become part of the political process in this 
country. You know, it is morals of the marketplace. Everybody has 
got some interest group. The Senate has to rise above all that. 

Senator Hatch. I agree. 

Mr. Bell. You listen to everyone and then use your best judg¬ 
ment. 

Senator Hatch. I agree. Thank you, sir. 

The Chairman. Thank you. I would just like the record to show 
what we all know, but it is important sometimes to state the obvi¬ 
ous: That this committee has not at any time commissioned any 



2816 


poll. Not that the General is implying that; no one was. But I want 
to make it clear. The polls that are being conducted are being con¬ 
ducted by the press, which is their right to conduct any poll they 
want. The committee is not, no Senator that 1 am aware of is con¬ 
ducting any poll. 

Secondly, I would hope that we would refrain from engaging in 
the public opinion process. No one on this committee has suggested 
that Judge Bork would not be tough on crime, tough on drugs, 
tough on pomographers. That is what we call a red herring, where 
I come from. But let us make it clear: Nobody on this committee, 
no Senator that I am aware of, no one has conducted a poll. To the 
best of my knowledge, no one on this committee is listening to 
polls. We will vote on what we believe to be the strength of the tes¬ 
timony given by the witnesses and by the nominee. 

I yield to the Senator from Arizona, Senator DeConcini. 

Senator DeConcini. Thank you, Mr. Chairman. 

Judge Bell, we welcome you here. You, indeed, have had some 
influence before on appointments, not only when you were Attor¬ 
ney General but with this Senator. You have, I think, been most 
forthright in your observations, and you have testified on many 
subjects. 

If I heard you correctly during your statement, you not only com¬ 
plimented the Chairman of this committee for conducting fair 
hearings, but you thought this process was very worthwhile and 
proper; and that all of these questions, as inane as someone on that 
side of the aisle may feel they are or someone on this side of the 
aisle may feel that they are, you felt that it was a good process. 

Did I understand you correctly? 

Mr. Bell. You did. And I think it is very much in the public in¬ 
terest. 

Senator DeConcini. That is the process here. You know, I have 
not made up my mind, but I respect those who have and I respect 
them for being able to come to that conclusion when they did. But 
I realize these special interest groups, some are out to get him, 
some are out to protect him. 

You know, it does not make that much difference to me because 
I have got to make my judgment whether that interest group is 
right or wrong. I will listen to them, but I am not going to make a 
judgment on it. I appreciate your candidness. Notwithstanding 
polls or what have you, this is the political process. If the polls 
came out and showed that the public was favoring him, so what, as 
far as this Senator is concerned. While I do not pretend to be above 
politics, I am not going to make my judgment in this issue based on 
what the polls are, one way or the other. 

You mentioned something of interest to me that caught my at¬ 
tention. You said you considered 15 percent of each spectrum—far 
right, far left—to be extremist. 

Mr. Bell. Extremes. 

Senator DeConcini. Extreme, yes. 

Mr. Bell. I did not put it on a personal basis. 

Senator DeConcini. Extreme. What kind of views would you con¬ 
sider fall into those extreme areas? In your judgment, how far do 
you have to go to be an extreme person or nominee or on an issue? 
Can you think of an example? I am trying to just clarify. 



2817 


Mr. Bell. I do not want to give my views on the extremes of the 
right and left. It would make a great newspaper story, and I do not 
think it would- 

Senator DeConcini. No, I do not want to write headlines with 
Judge Bell in them either. 

Let me ask you this: Based on this 15 percent at each end of it, 
where do you think Judge Bork fits? 

Mr. Bell. I would say he is right of the center. 

Senator DeConcini. Right of the center. 

Mr. Bell. Yes, and he would be— I do not know just where he is 
right of center, but he is definitely right of center. Any conserva¬ 
tive, I would view myself as being right of center. But people 
always say, “How do you classify yourself?” I say I am a moderate 
to conservative. I keep to the right. 

Senator DeConcini. And that is where you would classify him? 

Mr. Bell. No, he is more to the right than I am. 

Senator DeConcini. More to the right than you are. 

Mr. Bell. You see, I agree with White about the privacy opinion. 
That would make me a little different from Judge Bork. 

Senator DeConcini. You know, I value your analysis of Judge 
Bork. The fact that he has been a law professor, written a lot, and 
made many speeches—that has been his avocation, his profession. 
And I can understand it being provocative. 

Mr. Bell. If he would adopt the idea that liberty is an evolving 
concept under the 14th amendment, he and I would probably be 
the same. But I have adopted that. That does not mean I would not 
take a conservative approach to that. 

Senator DeConcini. I understand, and I think that is an impor¬ 
tant point. One of the areas that troubled me is that a person of 
Bork’s character and competence and professionalism, could take 
the intellectual approach he has taken over some 20 years plus. 
Yet when he looks at privacy, he told the chairman of the commit¬ 
tee that he would have to uphold that Connecticut statute if it was 
before him again. Here is a man that has extended himself with 
great effort to intellectualize why one case should fall into this 
area and what the framers had intended, and yet he could not 
come up with some right of privacy, whether it is under the liberty 
phrase, in the 14th amendment due process clause or what have 
you. 

Does that trouble you at all, where he has been able to intellec¬ 
tualize an answer to most other things one way or the other? 

Mr. Bell. Well, Stewart takes his position. 

Senator DeConcini. Well, I am not asking about Stewart. I am 
talking about Judge Bork. I am trying to figure who this guy is, 
really. And I can compare him to Stevens on one issue or another. 
But I am trying to figure out if there is anything wrong with the 
fact that he has not been able to intellectually find within the Con¬ 
stitution—and not the ninth amendment, because as the Chairman 
pointed out, Judge Bork does dismiss that—a right of privacy. Why 
do you think he would have trouble doing that? Do you have any 
observation? 

Mr. Bell. Well, I am not certain he has adopted the idea that 
any of the rights that we have outside the Constitution can be pro¬ 
tected by the federal government under the 14th amendment. I am 



2818 


not certain he has come to that position. You would have to ask 
him that himself. 

Senator DeConcini. We did. 

Mr. Bell. Until you come to that position, you would take the 
same position Justice Black and Justice Stewart took in the Con¬ 
necticut case, which is we cannot find it in the Constitution. That 
is all Judge Bork is saying: We cannot find it in the Constitution. 

I think a lot of constitutional scholars would agree with that ap¬ 
proach to it. They say that the approach I have, Justice White had, 
is loose-ended. I mean, how do you control it? What will be the 
next thing that falls under the concept of liberty? Well, that is why 
we use these phrases like “deeply rooted in our traditions,” “funda¬ 
mental in our thinking,” “part of a civilized society,” those sort of 
things. 

So in the end, you are left with the judges and what they think. 
You know, they are educated people who understand history and 
understand the desires of the people and what people have always 
wanted to get out of the government, what they aspire to. Those 
are the sort of things that these judges—that is why we have to 
have smart people on the Supreme Court. They are not supposed to 
make laws, but in a sense they do, although they do not do it, I 
think, intentionally, because they are construing the Constitution. 

Senator DeConcini. Thank you, Judge Bell. Thank you, Mr. 
Chairman. 

The Chairman. Senator Simpson. 

Senator Simpson. Judge Bell, General Bell, it is a great pleasure 
to see you, sir. You are one of the first gentlemen I met in my time 
here when I came to this town, among the first cadre who paid me 
a visit, you will recall, when I was in the dungeon chambers in the 
Russell Office Building; like the sewers in “Les Miserables.” 

I have moved out of there now. I am not in that location any 
more. God knows who is. It was 6 months of habitation there. I re¬ 
member it distinctly. 

One of the things that you said is very true. When we go back to 
the floor to vote, our colleagues will come up to us and say, “How 
is it going?” And if they are just reading about it or seeing it, they 
are distressed. They say, “Has he got a chance?” I would say, “I do 
not know. I think he has got a good chance, but it will not happen 
until we get here and the other 86 get to play.” 

It is just 14 of us players now and doing, I think, a very credible 
job. I hope so. The Chairman is, the Democrats and Republicans 
alike. We have 86 other players in this game, and the sooner they 
get in the better because that is where it will be decided. 

So I thank you for the courtesies you have extended to me, and 
you have said that you have not seen one probably as politicized as 
this. I surely have not, and I do not know if we ever will again. I 
think we have seen the last of this kind of hearing because people 
will simply clam up. They will not answer the questions, and they 
will have every right to do that. 

So thank you for bringing your uncommon degree of common 
sense to our deliberations. That is what made you such a remarka¬ 
ble official of the Carter administration. 

Now, almost all morning we have been talking about the right of 
privacy in some way, which has been interesting to me. Maybe I 



2819 


am naive. I listen to us speak about the right of privacy with 
regard to Roe v. Wade, Griswold v. Connecticut, those kinds of 
cases, theory, dissents, majorities. And then I come across a fasci¬ 
nating article. Maybe this does not mean anything to anyone. I 
bounced it off the heads the other day when I talked about how 
they had gone to Fmd what videotapes were rented by Ollie 
North—you know, interesting. 

Now, we have an article called the “Bork Tapes” from some 
outfit called the “City Paper.” It is free and it certainly should be. 
It is certainly free to write these kind of articles and publish it. 

But let me tell you: It seems more real than anything I know 
about the right to privacy after practicing law for 18 years. Maybe 
it is fun to check the video rentals of Ollie North and Judge Bork. 
Will it be as much fun to check them of Robert Woodward or 
Colman McCarthy? 

Now, you can laugh and you can chuckle, and you can go “Ho, 
ho,” but let me tell you, this is fascinating. You remember how the 
people of America responded when we had the copyright law and 
you could not dub something in your home. And they said, “We do 
not like that. We have the right to do anything we wish with video 
equipment and tapes in our home, and that is the right of privacy.” 
You said it beautifully: The right to be let alone. 

Well, to me, if you want to read that, I did not want to mention 
it or trot it out because I did not want to give it relevance, but it 
deserves all the ridicule you can give it. 

The Chairman. If the Senator will yield on the Chairman’s time? 

Senator Simpson. Yes. 

The Chairman. I want to join you and concur fully with what 
you are saying here. Quite frankly, I think it is reprehensible, and 
it is an embarrassment. I mean, absolutely embarrassing that a Su¬ 
preme Court nominee would have someone going down and looking 
at what videos he or she rented. 

I think it is an embarrassment, and I am glad you called it to 
our attention, and I concur fully with your sense of disgust and 
outrage on what was done. 

Senator Simpson. Well, Mr. Chairman, I thank you. As I say, it is 
something that is easy to pooh-pooh. It is, when it is against a 
public figure, but none of us would like it. Not one of us. And I do 
not have a collection. I do not have a dungeon full of X’ers or tri¬ 
ples. I really do not. But I tell you, it is an arrogant, smart-aleck, 
super sarcastic, puerile and smug and pathetic article. And I guess 
a real statement is it says, “The only real way to figure out what 
someone is like is to examine what that someone likes. Take a hard 
look at the tools of leisure he uses to chip away life’s rough edges.” 

And “If you were a nosy Washington reporter and a little bird 
offered to slip you a copy of the complete list of VHS tapes rented 
from a D.C. video store by a prominent citizen being considered for 
a gig doing vocals with the Supremes, would you scream first 
amendment, Ollie, Ollie, Oxen Free, and start doing your news 
hawk dance, succumbing utterly to the febrile desire for sensation¬ 
alist scab-pickin’? Well, it is dirty work, but somebody has to do it, 
says this cat.” 

Then he says, “Despite what all you pervs were hoping, there is 
not an X in the bunch and hardly an R.” 



2820 


Now, that is really something. To me, that has more to do with 
the right of privacy in the United States of America than all the 
Griswolds and all the Roe v. Wades that will ever be scribbled. I 
hope that my chums at the ACLU might look into that one, and 
Jerry and Mort and some of the crew. I will join you on that if you 
have any sense that that is kind of offensive. I would like to review 
that. 

Well, enough of that. I have been wanting to say that. All you 
can get accused of there is, well, what does that have to do with 
this? It has a lot to do with this because it is real and it is today 
and it is offensive. 

Well, I did not even let you answer a question, and I really do 
not have one. But I had that stuff heavy on me. Thank you for 
coming. 

Mr. Bell. I would like to comment on that. 

Senator Simpson. I would like your comment. 

Mr. Bell. We have been dwelling on law professors. The first dis¬ 
covery of the right of privacy was by a law professor whose name, I 
think, was Warren and somebody else. It was two people who wrote 
the Law Review article years ago. The first State in the Union to 
have a Supreme Court to adopt a right of privacy was the State of 
Georgia, and the name of the case was Pasovich v. New England 
Life Insurance Company. It was around the turn of the century. 

There, someone had taken someone's picture and run it in an ad¬ 
vertisement, and the person had not consented to it. That person 
brought a suit against the insurance company for invading his pri¬ 
vacy, a tort. The court upheld it. That is the way it started. 

This sort of thing here that you have just alluded to, going and 
copying the inventory of tapes, people drawing out tapes in a store, 
probably is not actionable now because of the Sullivan v. New York 
Times, if it involves a public figure. 

Senator Simpson. Right. 

Mr. Bell. A private person could bring suit for invasion of priva¬ 
cy. Those sort of things, though, would fall under what I call the 
right to be let alone, which might be a first cousin of a right to 
privacy. 

Senator Simpson. Thank you. 

The Chairman. Senator Leahy. 

Senator Leahy. Thank you very much. Mr. Chairman, I join with 
both you and Senator Simpson in denouncing this type of thing. It 
is nobody’s business what Oliver North or Robert Bork or Griffin 
Bell or Pat Leahy watch on television or read or think about when 
they are home. I am concerned because in an era of interactive tel¬ 
evision cables, the growth of computer checking and check-out 
counters, of security systems and telephones, all lodged together in 
computers, it would be relatively easy at some point to give a pro¬ 
file of a person and tell what they buy in the store, what kind of 
food they like, what sort of television programs they watch, who 
are some of the people they telephone. And if they are in a place 
with a computer security system, you could even tell whether they 
came home late at night or did not even come home at all. I think 
that is wrong. I think that really is Big Brother, and I think it is 
something that we have to guard against. 



2821 


I think that that is something that is not a conservative or a lib¬ 
eral or moderate issue. It is an issue that goes to the deepest yearn¬ 
ings of all Americans that we are here and we cherish our freedom 
and we want our freedom. We want to be left alone. 

We have almost caricatures of that of Vermonters welcoming 
that privacy, but they welcome that in Georgia, I am sure, or Wyo¬ 
ming or Delaware. Those are the things that we have got to guard 
against. 

I do not think that if we are going to look for people for public 
figures that they deserve that kind of scrutiny. They really do not. 
They deserve questions to be asked thoroughly and fully about 
their views about the job that they are going to go into, the public 
office that they are going to go into. That is really what is happen¬ 
ing in this committee. I think there has been a thorough, extensive, 
intensive review, but I do not share the views of some that some¬ 
how we have now altered for all times who can even be picked to 
be a Supreme Court Justice. 

The fact is we may have changed or enlarged the kind of scruti¬ 
ny we use, but we should be doing that. For public office, it is le¬ 
gitimate scrutiny. Senator Hatch has said that there has been a 
great deal of lobbying here. Well, of course, there has—on both 
sides. In my 13 years in the Senate, I have never received so much 
mail and so many phone calls on any subject as I have on this one, 
and they have been heavily lobbied. I mean, we now weigh the pre¬ 
printed postcards. Well, 49 pounds for, 110 pounds against; then 
the next day it is 110 pounds for, 49 against. 

They even ran a cartoon in one of our local papers saying that I 
would not have to buy any firewood in Vermont this year; I would 
have plenty to bum and keep going for the rest of the winter. The 
only thing they are wrong in is I have got enough the go for the 
next three winters, no matter how cold it gets in Vermont. 

But I would note this: Those lobbying efforts have gone beyond 
the pale with some on both sides. There were a lot of people geared 
up long before this thing even started to tell us either of what a 
danger or what a blessing Judge Bork was. I can speak for myself 
and I think for a lot of other Senators. We are not going to make 
up our mind based on what the lobbying groups tell us. We are 
going to make up our mind based on what we hear here. 

That is why we have listened so carefully to people both for and 
against Judge Bork here. But I find very distasteful some of the 
tactics I have seen in lobbying, and I would assure the Senator 
from Utah that those tactics have not all been all used against 
Judge Bork. Some of the very distasteful ones have been used for 
him, and I do not associate Judge Bork with that at all. I think 
that he is way above that sort of thing. 

Let me just ask you one question, Judge Bell. During the time 
when you were Attorney General, was Judge Bork on any one of 
your short lists for recommendation to any position, judicial or ex¬ 
ecutive? 

Mr. Bell. No. I never liad a short list. You mean for the Su¬ 
preme Court? 

Senator Leahy. Well, either the Supreme Court or any judgeship 
or any other position, say even in the Department of Justice? 



2822 


Mr. Bell. I did not have a list of Supreme Court Justice possible 
nominees except in my head. The reason I did not- 

Senator Leahy. Was he on that list? 

Mr. Bell. President Ford had a list, and it was over in the de¬ 
partment. A lot of people seemed to know about it. I did not think 
that was a good thing. 

Now, insofar as I know, he never came up on any of the Circuit 
Court Commission lists. I never saw his name. But having said 
that, I have never heard that he applied for circuit judgeship. 

I was having dinner with him when we were working on this 
case here in Washington when he told me that he had been asked 
if he was interested in going on the court of appeals for the District 
of Columbia. And later on he told me he decided to go on the court 
of appeals. You know, he had been teaching or in the government 
most of his life, and I was frankly somewhat surprised he went on 
the court at the time because he was doing well in the law practice. 
But he wanted to do it, and that is what he did. 

I never saw his name on any list that I had. 

Senator Leahy. Judge, when you testified in favor of Chief Jus¬ 
tice Rehnquist, you said that the 1984 presidential election mandat¬ 
ed his confirmation, and you said that the results of the 1984 elec¬ 
tion mandated Judge Boric's nomination. 

Do you see the results of the 1986 election, which changed the 
control of the Senate, having any influence whatsoever? 

Mr. Bell. Yes, I do. It had to give you a heavy responsibility in 
the confirmation process, but it cannot change the fact that the 
President, one that carried 49 states, is entitled to do the nomina¬ 
tion. 

Senator Leahy. I understand, but could it also speak to the fact 
that the American people realize that the Senate is an equal part¬ 
ner in the confirmation process through the advise and consent 
clause? 

Mr. Bell. No, I do not agree with that constitutionally. I do not 
think the Senate is an equal partner. 

Senator Leahy. You do not? 

Mr. Bell. No. 

Senator Leahy. So we should just rubber stamp? 

Mr. Bell. No. Oh, no. I do not think you are a partner at all. I 
think you have a separate responsibility to look at the nominee 
and either confirm or not confirm. But you are not a partner in the 
nominating process that the President would have to check with 
you. Sometimes people seem to think that the President ought to 
check out what he is going to do with the Congress before he does 
anything. 

We do that in foreign intelligence, as you know, oftentimes, or 
foreign relations generally. But I do not think that works in the 
nominating process. 

The Chairman. Your time is up, Senator. 

Senator Leahy. Thank you. 

The Chairman. The Senator from Pennsylvania. 

Senator Specter. Thank you, Mr. Chairman. 

Judge Bell, I would like to discuss with you for a few moments 
the subject of Judge Bork’s testimony on saying that he would 
apply settled principles although he disagreed with them philo- 



2823 


sophically. It came up specifically in the context of Justice Holmes’ 
clear and present danger test. We had gone through an analysis of 
the case, and it turned on the decision in Brandenburg v. Ohio. 
Judge Bork said that even though he maintained his philosophical 
disagreement, that he would apply the settled principle. 

Do you think that it is realistic to apply a doctrine where a judge 
disagrees with the underlying philosophy? 

Mr. Bell. Well, yes, I think it is practical, if you want to know 
that. I think judges do that fairly often. They vote to do something 
that they do not agree with, but they think the law requires it. 
And I will give you an example. 

When I was on the Fifth Circuit Court of Appeals, the FBI found 
out that a group in Tallahassee, Florida, had decided to come to 
Jacksonville to obstruct justice. They were going to invade the 
courtroom to put, as they said, “the judges in fear.” They did. And 
we were prepared. We had people there to keep order, and we went 
on with the hearing after some disturbance. 

But at that time, the Justice Department wanted to prosecute 
these people for obstructing justice. They came to see me, and I 
said, “You should not do that. They did not obstruct justice, 
number one, and number two, that is a form of speech that they 
were engaged in, plus action, in this very close case, and I would 
not do that.” 

Now, I would have liked to have sent them all to the penitentia¬ 
ry if I could, but under the system you cannot do that. And I think 
that a lot of times judges rule on things that they are—and they 
stick with precedents that they do not agree with. 

Senator Specter. Judge Bell, it came into pretty sharp focus on 
the follow-up question, which I had intended to include in the first 
question, but I was interested in your view just on the abstract 
principle. 

I then asked Judge Bork about the follow-up case of Hess v. Indi¬ 
ana, and without getting too deeply involved in the specific facts of 
the case, I said, “Well, then, we can expect you to apply the settled 
law clear and present danger, as expressed in Brandenburg and 
Hess. ” And Judge Bork said, “No, I do not go for the Hess case.” 

I said, “Well, why not?” He said, “Well, the Hess case is an ob¬ 
scenity case.” In that case, the man in the street in the college 
demonstration, expletive deleted, said, “We are going to keep the 
things free.” 

The concern that I have is here you have Judge Bork saying that 
he disagrees with the clear and present danger test. You have him 
saying that he does not like Brandenburg but he will apply it philo¬ 
sophically. 

The very next case that comes along is Hess v. Indiana, just 4 
years later. This is a case where Judge Bork has written that it is a 
clear and present danger case; this is a case where the Supreme 
Court analyzes the freedom of speech rule in terms of clear and 
present danger, and not in an obscenity case. There is a three-man 
concurrence also on the clear and present danger issue. But the 
very next case that comes up, Judge Bork disagrees with its being 
a clear and present danger issue but moves over to an obscenity 
issue and does not commit to follow it. 



2824 


That is a considerable concern that I have, given the fact that 
these cases are all different on the facts, and where you have him 
having expressed himself in such very forceful language against 
the Holmes clear and present danger test. And he says he will 
accept it as settled law, but the very next case that comes up, he 
does not see it as a clear and present danger case. He sees it as an 
obscenity case. 

That gives me considerable pause, and I would like your observa¬ 
tion on that. 

Mr. Bell. Well, I am not familiar with the Hess case, but that 
would bother me if somebody said they would do something and 
then they immediately figure a way to get around it. 

Senator Specter. That is the concern I have, precisely stated. 

Mr. Bell. I do not think you could make an obscenity case out of 
the facts as you stated them. I mean, I do not think that could be 
seriously argued that that was an obscenity case. It is a speech 
case. 

Senator Specter. Well, the Supreme Court said it was a speech 
case, and Judge Bork had in some prior writings. That is why I 
have a trouble as to the next case that comes along on applying the 
constitutional principle, if there is a deep seated philosophical dis¬ 
agreement. 

Mr. Bell. I thought he had said that he now would follow the 
Brandenburg case. 

Senator Specter. He did but then he distinguished the Hess case 
as an obscenity case. 

Is my time up, Mr. Chairman? 

The Chairman. Yes, it is. 

Senator Specter. Thank you very much, Judge Bell. 

The Chairman. Senator Humphrey. 

Senator Heflin. What about me? 

The Chairman. I am sorry. I beg your pardon. Senator Heflin. I 
am sorry. 

Mr. Bell. It is hard to see Senator Heflin. 

The Chairman. I never have any trouble seeing Senator Heflin. 
A man of his keen intellect is hard to not see. 

Senator Heflin. Intellect has not got anything to do with size. 
[Laughter.] 

Judge Bell, we are delighted to see you. 

The Chairman. Would you mind taking off your sheath there. 

Senator Heflin. They can hear me back in Alabama without it. 

We are delighted to see you. I believe last time you were up here 
on some confirmation they got on you a little bit. I had to defend 
you some. 

Mr. Bell. You did, yes. 

Senator Heflin. I do not remember exactly what it was. 

Mr. Bell. I was worried about coming up here today, to tell you 
the truth. I was hoping to have some defenders. 

Senator Heflin. They are pretty nice to you. 

I think sometimes people do not realize your service to this coun¬ 
try as a member of the United States Court of Appeals for the 
Fifth Circuit during the days where you had some right troubled 
times. I believe you said that you were one time the superintendent 
of schools for the State of Mississippi. What was that statement? 



2825 


Mr. Bell. I had 32 school districts when I was administering the 
school system in a segregation case. The people in Mississippi 
called me the school superintendent of Mississippi. I was not call¬ 
ing myself that. 

Senator Heflin. Well, you know, you say you are now a moder¬ 
ate conservative. You were one of them wild-eyed liberals back 
then. In fact, as I remember, you were on the list for the barbed 
wire treatment, were you not? 

Mr. Bell. Yes, I always wished my mother and father had been 
living when I was in the confirmation process for Attorney General 
where I was made out to be an ultra conservative. They went to 
their graves thinking I was an ultra liberal of some sort. 

Senator Heflin. You sort of changed it a little bit. You said mod¬ 
erate conservative. They tell me you have become a lot more con¬ 
servative since you became rich. [Laughter.] 

In fact, I keep hearing if you could make another 10 million that 
you may be a Republican before it is over. [Laughter.] 

Mr. Bell. I do not know about that. 

Senator Heflin. We are delighted to see you. I tell you, this con¬ 
firmation process has been an interesting one. That 15 percent on 
the right and the 15 percent on the left I believe has got a little 
crowded. We have had a great deal of phone calls and letters, as 
well as people seeing us on this matter. 

Mr. Bell. They have got more than 15 percent of the noise¬ 
making capacity. 

Senator Heflin. Well, I think that is probably correct. 

You said you do not think that Judge Bork would attempt to 
turn back the clock on any of the progress that has been made 
through decisions of the U.S. Supreme Court in race relations in 
the South. This, of course, is a concern to me. We certainly do not 
want to have to go back and relive some of the strife that occurred 
in some of the days of anxiety that we went through. I think that I 
am fair in stating that conservatives, liberals, Republicans, Demo¬ 
crats—nobody wants to go back into that. 

Why are you convinced that he would not, in effect, change any 
of the decisions? I am interested in your opinion on that. 

Mr. Bell. Based on my knowing him, I consider him to be a very 
sensitive person to other people and to history. And it would take 
almost a barbaric person to come out and say and even try and 
turn back the clock on civil rights. 

If I thought he was going to turn the clock back on civil rights, I 
would not support him. I will tell you that. I have spent a lot of 
years of my life in that field of endeavor, and we do have things in 
pretty good shape now. There are still problems, of course, and 
there always will be in a country like ours where we have a lot of 
diverse people. 

But I have never heard him say anything that would indicate to 
me or see anything he has written that he would do anything 
against civil rights. Therefore, I do not expect that he would. 

I would be shocked if he did anything except vindicate civil 
rights of people. On race now, you are talking about race. I am 
talking about race. Now, when we get over to the civil rights of 
women, that is a little different. I think that he would apply the 
14th amendment, the equal protection clause to women, as would I. 



2826 


The 19th amendment changed our history. As I said earlier today, 
the whole attitude in the free world toward women changed. I 
would expect that his attitude would be fine on women. 

Now, I have not listened to the whole hearing, and I understand 
they got some debate started over how he would apply the equal 
protection standard as to women, which we will have to address 
separately. I understand he has the same view that Justice Stevens 
has. Unless there is a reasonable basis for denying the equal pro¬ 
tection, you could not deny. But in race, you could not deny it at 
all. There would not be any way that anyone could think of to 
make any exception based on race. 

He said that on women he thought maybe a distinction based on 
combat, military combat, would be a valid distinction and I think 
restrooms. That is all I read he said, but I did not hear his testimo¬ 
ny. 

I am satisfied, and I told Mayor Young, that he would not do 
anything against the rights of blacks. Now, you have not asked me, 
but he has been into the busing question and the affirmative action 
question. As you know, those are not constitutional rights. They 
are remedies that were fashioned to relieve and overcome the prod¬ 
uct of discrimination. Bussing has not worked out well. Most judges 
thought that it would not work out well, but they have tried. They 
were trying to do something to integrate the schools. The other 
thing, affirmative action was—we got that for the same reason, and 
it runs to women as well as to blacks. That will be in use so long— 
until we are in balance, until we get where everyone has their 
rights, the discrimination has been eradicated. 

So those things are important, but I would strongly imagine that 
if he was faced with fashioning a remedy, say the Alabama case 
where the State patrol was ordered to hire a certain number of 
black troopers, some percentage—the Supreme Court upheld that— 
I do not know how he would rule on that, but, certainly, I would 
not have any trouble with that. 

The thing we have to keep in mind, though, is that this affirma¬ 
tive action, and bussing, all those things do finally come to an end. 
They are remedies. Remedies. 

The Chairman. The Senator from New Hampshire. 

Senator Humphrey. Thank you, Mr. Chairman. 

Judge Bell, just to review your credentials, you are a Democrat 
still. 

Mr. Bell. Still? 

Senator Humphrey. Are you not? 

Mr. Bell. I do not have any plans to change. 

Senator Humphrey. You served as a district court judge, or was 
it circuit court of appeals judge? 

Mr. Bell. I may be put out. That is the only problem I am 
having. 

Senator Humphrey. At which level of the federal judiciary did 
you serve as judge? 

Mr. Bell. Court of appeals. 

Senator Humphrey. Court of appeals. 

Mr. Bell. What was then the fifth circuit. It is now fifth and 
eleventh circuits. What now is one big circuit. 



2827 


Senator Humphrey. Second highest level in the judiciary. And 
you served for 15 years, no- 

Mr. Bell. Fourteen and a half. 

Senator Humphrey [continuing]. Small chunk of a person’s life. 
And you served during some very turbulent years. As we heard 
from Senator Heflin, you were referred to by some people in Mis¬ 
sissippi, at least, as the school superintendent for the State of Mis¬ 
sissippi, even though in fact you were a federal judge. 

So it sounds as though—although I do not know the details—it 
sounds as though you certainly did not spare the judicial rod in the 
discharge of your responsibilities to uphold trie equal rights of citi¬ 
zens. 

While you were Attorney General, Mr. Bell, the top man in the 
United States Justice Department, how many judges would you 
say—this of course was in the administration of President Jimmy 
Carter. 

How many judges would you say your Department recommended 
that the President nominate to the bench? 

Mr. Bell. Well, we recommended over 200. 

Senator Humphrey. Over 200. 

Mr. Bell. I think it was, as best as I can remember, 222, 224. We 
recommended more than that, but the President did not appoint 
every one we recommended. I think two or three times he appoint¬ 
ed someone else, but generally he did. 

Senator Humphrey. Almost all the time the President followed 
your recommendations. 

Well, in the examination of possible nominees to the federal 
bench, was your evaluation of their civil-rights credentials cursory? 
Was it substantial? Did you give it a great deal of scrutiny? 

How much importance did you give to that in the screening proc¬ 
ess? 

Mr. Bell. I gave a great deal. I put in a new system where I had 
the National Bar Association, which is mainly black lawyers—I let 
them in the process just like the American Bar Association, and 
asked them to give their opinion on each candidate, as to whether 
they thought they were biased. And that was a help. So we paid a 
lot of attention to that. We did not want any biased judges on the 
bench. 

Senator Humphrey. Yes. So you gave it a great deal of weight in 
the process? 

Mr. Bell. Oh, yes, and one of the things the American Bar was 
supposed to look at, but the black bar actually was closer to the 
situation. 

Senator Humphrey. Have you any less confidence in the ability, 
and likelihood of Robert Bork to uphold equal rights for all citizens 
when he is confirmed, than you had in the nominees which you 
recommended to the President? 

Mr. Bell. I do not, and I have not heard anyone say that he 
would be biased. 

Senator Humphrey. Well, it has been implied. 

Mr. Bell. I have not seen any of the reports-- 

Senator Humphrey. Take my word for it. You can take our word 
for it. In fact it has been more than implied, and I am going to get 
to that in just a minute. 



2828 


Mr. Bell. I have not seen an FBI file, for example. I read every 
FBI file on the judges that were processed when I was Attorney 
General. I have not read his FBI file, but I do not know of any 
reason to believe—I do not have a reason to believe he is biased. 

Senator Humphrey. Well, one U.S. Senator said, in this room— 
and it is too bad the Senators do not have to take the oath as do 
witnesses—but one U.S. Senator said on this subject that, “In 
Robert Bork’s America, black citizens would have to sit at segregat¬ 
ed lunch counters.” 

Now that is the kind of rhetoric, not only from these special-in¬ 
terest groups, but from Senators of the United States, which I 
think is reprehensible. 

Mr. Bell. I am not trying to defend the Senator that said that, 
but at the time of the public-accommodations law, I think Judge 
Bork said that he was opposed to the public-accommodations law, 
so I assume that is what the Senator had reference to. 

Senator Humphrey. Well, do you think that was a responsible 
charge to make, that blacks would have to sit in segregated lunch 
counters? 

Mr. Bell. Well, I do not think that would be so now. I do not 
think that Judge Bork even believes that now, but at that time, a 
lot of people in this country—as I said earlier, a lot of lawyers 
thought that the law was unconstitutional. There had never been a 
case where we had found that just buying a bottle of vanilla flavor¬ 
ing in interstate commerce was enough to put a whole restaurant 
under interstate commerce. 

But the commerce clause was what the public-accommodations 
law was based on, not the equal protection clause or the 14th 
amendment, and a lot of people had doubt about it at the time, but 
the Supreme Court upheld it and that was the end of that. 

Senator Humphrey. I am simply trying to make the point that in 
fact the charge of racism has been raised in almost explicit terms, 
even in this room. We heard that statement from a Senator saying 
blacks would have to sit at segregated lunch counters. 

The same Senator said that rogue police would be breaking down 
our doors in the middle of the night. 

Mr. Bell. Well, I tell you, I am going to leave that sort of rheto¬ 
ric to be settled amongst the Senate. 

Senator Humphrey. I was hoping I could get you- 

Mr. Bell. Keep out of it myself. I learned long ago not to get in 
somebody else’s fight. 

Senator Humphrey. Well, you do not mind my extending an invi¬ 
tation, do you? [Laughter.] 

Well, let’s talk about some of these advertisements by these spe¬ 
cial-interest groups. 

The Chairman. Senator, your time is up, but since you did not 
take time in the first round, take a little more, but please try 
to- 

Senator Humphrey. Thank you. That pleases me very much. 
Thank you. But I will not be greedy about it. 

Another impression that has been created is that Judge Bork 
would put a federal television camera in everyone’s bedroom. 

I tell you, the kinds of charges and innuendo, and lies, as Attor¬ 
ney General William French Smith branded them—accurately— 



2829 


that have been raised in connection with this hearing, are certain¬ 
ly the worst I have seen and hope ever to see in my entire life. I 
think it is disgraceful. 

You know, it is really odd, and, in a way, very revealing, is that 
notwithstanding the fact that nearly a third of the Supreme 
Court's calendar, docket, is comprised of criminal law cases, we 
have hardly had a peep on that subject in this room. 

It has all been racism, sexism, extremism, turning back the 
clock-ism—all of this rubbish. 

Mr. Bell. Don't you think that is because most people are now in 
agreement that—on law and order questions, that we do need to 
have law and order in our country? 

Senator Humphrey. But nonetheless, in filling a Supreme Court 
vacancy, it is important that we have a nominee who will take a 
reasonable approach in dealing with criminal law cases, such that 
not only are the legitimate rights of the accused—by the time they 
get to the court they are criminals I guess—not only would it pro¬ 
tect the legitimate right of criminals in the process, but also, that 
judges insure that they sustain enough balance so that the rights 
of innocent citizens to the security of their persons and their prop¬ 
erty are upheld as well. 

Are you at all concerned on this score? 

Mr. Bell. Well- 

Senator Humphrey. Do you think courts have gone too far in 
protecting criminals? 

Mr. Bell. What is that? 

Senator Humphrey. Do you think courts have gone too far in 
protecting criminals, in the sense that they have reduced the legiti¬ 
mate protection which innocent citizens are entitled to? 

Mr. Bell. Well, I am not in favor of overruling Miranda. 

Senator Humphrey. I did not ask that. 

Mr. Bell. No. But I do favor the change that has been made in 
the exclusionary rule, where they came out with the good-faith ex¬ 
ception. I think that was a step in the right direction. 

Senator Humphrey. Yes. 

Mr. Bell. I think before that, a lot of criminals were getting off 
on technicalities, and that was upsetting the American people no 
end. 

Senator Humphrey. And they are still upset about it. 

Mr. Bell. I would like to say about the general question that you 
are on: I believe that the four Justices that the people keep saying 
that Justice Bork would join, and turn back the clock, I think they 
are in need of counsel. They need somebody to represent them. 
And I think that they are talking about Justice White, and Justice 
O’Connor. I imagine they wonder every day what clock are they 
getting ready to turn back? They never turn back a clock. 

Scalia and the Chief Justice, I guess they are classified as full 
conservatives, but it is amazing that these four people are supposed 
to vote as a block, and we have got smother person we are getting 
ready to send over there to join this block. 

Now that is not the way courts operate. Every judge is a law 
unto himself in a way. I mean, they do not want anybody to tell 
them how to vote, and you just do not get in blocks, and you get 
very offended is somebody comes around and lobbies you even. 



2830 


So I think that that is something that seems to be overlooked in 
the hearing, that these four judges are not getting anybody to 
defend them, so I would like to say a word on their behalf. 

Senator Humphrey. Thank you very much. 

The Chairman. Your time is up, Senator. Senator, I want to give 
you a chance to clarify the record. 

I am sure you did not mean what you said when you said that 
they are “criminals by the time they get to the court.” You meant 
by the time they get to the Supreme Court, right? 

Senator Humphrey. I was not talking about the judges. 

The Chairman. No, no. You were talking about the accused. 

Senator Humphrey. I was talking about- 

[Laughter.] 

The Chairman. No, no. I am being very serious, because a 
number of us, when you said the “accused are criminals by the 
time they get to the court.” 

Senator Humphrey. Yes. I understand that decisions can be over¬ 
turned at the Supreme Court. Therefore, the last word has not 
been heard. 

The Chairman. All right. 

Mr. Bell. I would like to say that that colloquy is lost on me. 

The Chairman. It is lost on me, also. I am sorry. Let the record 
stand as it was stated. 

Judge, thank you very much for being here. We truly appreciate 
it. 

Senator Thurmond. Thank you very much. Judge, for appearing. 

The Chairman. Now let me tell my colleagues on the committee 
the plans of the committee. We are going to take one more witness 
before lunch. 

Professor Philip Kurland. If you will come forward, Professor, 
while I indicate what the rest of the day will be. 

We have three more panels, all testifying on behalf of Judge 
Bork, panels made up of five, six, and three people, respectively, 
and one individual who will be testifying against Judge Bork this 
afternoon. 

I would like my colleagues to consider whether or not we would 
be willing to run right through lunch, but that is up to them, to 
make that judgment. We will think about that. 

If not, we will take a break immediately after Professor Kurland 
testifies, but I would like to finish this list today. 

And also suggest to my colleagues, we are going to have to con¬ 
sider—it is obvious to me we are not going to be able to get to a 
mark-up by Thursday, as we had hoped. 

I would like them to begin to consider whether or not next Tues¬ 
day or the following Thursday is best suited for that purpose. We 
will make no decision at this moment. Not Friday, I can assure you 
that. It will either be next Tuesday or next Thursday, and we can 
discuss that later. 

Let me swear you in. Professor. 

Do you swear the testimony you are about to give is the truth, 
the whole truth, and nothing but the truth, so help you God? 

Mr. Kurland. I do. 



TESTIMONY OF PHILIP B. KURLAND 

The Chairman. Thank you and welcome. Our witness is Philip B. 
Kurland, the William R. Kenan Distinguished Service Professor at 
the University of Chicago. 

It is a pleasure to welcome such a very distinguished scholar and 
witness, among the leading constitutional scholars of our time, to 
testify before this Committee today. 

Professor, do you have an opening statement? 

Mr. Kurland. I do. 

The Chairman. Would you please proceed. 

Mr. Kurland. And I have submitted it to the committee. 

The Chairman. It will be entered in the record in its entirety, 
and to the degree to which you can summarize, it would be appreci¬ 
ated. 

Mr. Kurland. I want to say I have known Robert Bork for many 
years. I have worked with him. Some of his closest friends have 
been some of my closest friends. 

Had I been called here as a character witness, I should gladly 
tell you of his impeccable character. That is not my role. 

I am here today to tell you why I think his appointment to the 
Supreme Court would not be good for the Court, for the nation, or 
for the Constitution. 

Because so much nonsense has been spoken and published sug¬ 
gesting a rubber-stamp function for the Senate, provided only that 
a nominee has demonstrated legal talents and an absence of crimi¬ 
nal convictions, I would offer you a quotation from Senator Strom 
Thurmond at the Fortas hearings, where he described, appropriate¬ 
ly, the role to be performed here. 

He said, and I am quoting: “To contend that we must merely sat¬ 
isfy ourselves that Justice Fortas is a good lawyer, and a man of 
good character, is to hold a very narrow view of the role of the 
Senate, a view which neither the Constitution itself, nor history 
and precedent have prescribed.” 

“It is my opinion, further, that if the Senate will turn down this 
nomination, we will thus indicate to the President, and future 
Presidents, that we recognize our responsibility as Senators. After 
all, this is a dual responsibility. The President merely picks, or se¬ 
lects, or chooses the individual for a position of this kind, and the 
Senate has the responsibility of probing into and determining 
whether or not he is a properly qualified person to fill the particu¬ 
lar position under consideration at the time.” 

Senator Thurmond. That is a pretty sound statement, isn't it? 

Mr. Kurland. I agree with it wholeheartedly, Senator. 

Second, I would just like to suggest, as concisely as I can, some of 
the reasons why I think you should deny your consent to the nomi¬ 
nation pending before you. 

Fir t, at least since his most recent return to Washington, Judge 
Bork has purported to espouse the notion that constitutional deci¬ 
sions not based solely on the text, and the so-called intent of the 
authors, are invalid. 

The fact is that original intent is not a jurisprudential theory, 
but, like Nixon’s “strict construction,” and Roosevelt’s “back to the 
Constitution,” it is merely a slogan to excuse replacing existing Su- 


(2831) 



2832 


preme Court judgments with those closer to the personal predilec¬ 
tions of their expounders. 

Indeed, I have it on the highest authority that history is an inad¬ 
equate guide to the resolution of constitutional controversies before 
the Court. 

Let me quote the words of a constitutional scholar of some dis¬ 
tinction, Professor Robert Bork, writing in 1968. 

He said: "The text of the Constitution, as anyone experienced in 
words might expect, is least precise where it is most important. 
Like the Ten Commandments, the Constitution enshrines profound 
values, but necessarily omits the minor premises required to apply 
them. The First Amendment is a prime example.” 

“To apply the Amendment,” he said, “a judge must bring to the 
text principles, judgments, and intuitions not to be found in bare 
words.” 

He went on: "When we turn to the equal protection clause of the 
14th amendment, we know the clause was meant to be important, 
but the words tell the judge very little. History can be of consider¬ 
able help, but it tells us much too little about the specific inten¬ 
tions of the men who framed, adopted and ratified the great 
clauses. The record is incomplete. The men involved often had 
vague, or even conflicting intentions, and no one foresaw, or could 
have foreseen the disputes that changing social conditions, and out¬ 
looks would bring before the Court.” 

This view of the limited use of history, announced here by Judge 
Bork, was shared by the famed jurists who bore the label of "judi¬ 
cial restraint,” including the three leaders of the school—Holmes, 
Frankfurter, and perhaps the greatest of them all. Judge Learned 
Hand. 

My expectation that Judge Bork would find little barrier—it is 
that Judge Bork would find little barrier in stare decisis to a wide¬ 
spread judicial revision of erroneous decisions—derives from his 
own statements, and writings. 

Of course Judge Bork could not singlehandedly overturn the 
large number of cases that his contemporary rhetoric threatens. 

But Judge Bork would not be the first Reagan appointee. He 
would be the fourth. It is true that Judge Bork once said before 
this body, “A judge ought not to overturn prior decisions unless he 
is absolutely clear that that prior decision was wrong, and perhaps 
pernicious/’ 

Unfortunately, like Koko in “The Mikado,” Judge Bork has a 
little list, or perhaps not such a little list, of cases which he has 
anathematized. “Nobody believes,” he told the Senate, “the Consti¬ 
tution allows, much less demands, the decision in Roe v. Wade or 
in dozens of other cases in recent years.” 

Certainly, that was hyperbole, but not less revealing for it. And 
he did tell this body at one time that the cure for erroneous consti¬ 
tutional judgments is to be had through the appointment process. 

A quick currying of just some of his recent writings and speeches 
reveals a long list of cases damned by Judge Bork as wanting sup¬ 
port in the Constitution or its original context and, therefore, eligi¬ 
ble for obliteration whenever five votes can be garnered on the Su¬ 
preme Court. A sampling includes the reapportionment cases, the 
privacy cases, Shelley v. Kraemer making racially restrictive cov- 



2833 


enants unenforceable, Katzenbach v. Morgan suggesting a congres¬ 
sional power to add to the rights protected by the 14th amendment, 
Skinner v. Oklahoma invalidating a law providing for involuntary 
sterilization of criminals, Engel v. Vitale banning prayer in public 
schools, Aguilar v. Felton banning public financing of religious 
schools, Bakke v. Board of Regents sustained affirmative action. 
The list goes on and on. 

In addition to these, I should say there is the principal thrust of 
Attorney General Meese’s original intent thesis, a thesis that 
Judge Bork seems to have espoused, that the Bill of Rights is not 
properly applicable to State actions. There would be an almost 
wholesale license to the States to avoid the restraints of all of the 
first eight amendments. 

Third, not only does Judge Bork's judicial philosophy bode ill for 
past decisions in the Supreme Court, it also reveals sui unwilling¬ 
ness to recognize that the principal objective of the framers of our 
Constitution 200 years ago was the preservation and advancement 
of individual liberty. liberty was, indeed, the watchword of the na¬ 
tional convention and of the State ratifying conventions as well. 

The Constitution did not create individual rights. The people 
brought them to the convention with them and left the convention 
with them, some enhanced by constitutional guarantees. The Bill of 
Rights, in guaranteeing some more, made sure that none was ad¬ 
versely affected. 

Judge Bork, however, would now limit the rights of the individ¬ 
ual to those specifically stated in the document, thereby rejecting 
his claim to be a textualist by ignoring the ninth amendment 
which provides, and I quote, “the enumeration in the Constitution 
of certain rights shall not be construed to deny or disparage others 
retained by the people.” 

Again, I have it on the highest authority that Judge Bork’s cur¬ 
rent restricted view of the people's rights is wrong. Again, I quote 
to you from Professor Robert Bork, who told us, “A desire for some 
legitimate form of judicial activism is inherent in a tradition that 
can be called Madisonian. We continue to believe that there are 
some things no majority should be allowed to do to us, no matter 
how democratically it may decide to do them. A Madisonian system 
assumed that in wide areas of life a legislative majority is entitled 
to rule for no better reason than that it is a majority. But it also 
assumes that there are some aspects of life a majority should not 
control, that coercion in such matters is tyranny, a violation of the 
individual's rights. Clearly, the definition of natural rights cannot 
be left to either the majority or the minority. In the popular under¬ 
standing upon which the Supreme Court’s power rests, it is precise¬ 
ly the function of the Court to resolve the dilemma by giving con¬ 
tent to the concept of natural rights in case-by-case interpretation 
of the Constitution. This requires the Court to have and to demon¬ 
strate the validity of a theory of natural rights.” 

Professor Bork went on with encomia over Mr. Justice Gold¬ 
berg’s rationale for Griswold v. Connecticut, the case for which he 
can now find no excuse and which he now regards as anathema. I 
am continuing the quote from Professor Bork. “Legitimate activism 
requires, first of all, a warrant for the Court to move beyond the 
range of substantive rights that can be derived from the traditional 



2834 


sources of constitutional law. The case for locating this warrant in 
the long-ignored ninth amendment was persuasively made by Jus¬ 
tice Arthur Goldberg. . . . This seems to mean that the Bill of 
Rights is an incomplete, open-ended document, and that the work 
of completion is, at least in major part, a task for the Supreme 
Court. There is some historical evidence that this is substantially 
what Madison intended.” 

Bork’s current constitutional jurisprudence, however, is essen¬ 
tially directed to a diminution of minority and individual rights. 
Thus, in his recent Boyer Lecture before the American Enterprise 
Institute, he sneered at the view that “individuals are entitled to 
their moral beliefs,” because, he said, “the result of discounting 
moral harm is the privatization of morality, which requires the law 
of the community to practice moral relativism.” For him constitu¬ 
tional freedom belongs not to the individual but to the State. 
Indeed, to quote him from the same source, “the major freedom of 
our kind of society is the freedom to have a public morality.” 

Once again, I would invoke the argument of Professor Bork in 
refutation of the argument of Judge Bork. “Moral disapproval 
alone,” he once wrote, “cannot be accepted as a sufficient rationale 
for any coercion. If it were, there would be no limit to the reach of 
the majority’s power, and that contradicts the basic postulate of 
the Madisonian system.” 

I submit that, as Judge Learned Hand once told us, the Constitu¬ 
tion cannot survive unless sustained by the “spirit of liberty” 
which gave it birth. I would close, then, by quoting Judge Learned 
Hand’s notion of the spirit of liberty, a spirit which is totally 
absent from Judge Bork’s constitutional jurisprudence. Judge Hand 
said, in 1944, in the midst of the war we were then waging against 
the forces of darkness: “The spirit of liberty is the spirit which is 
not too sure that it is right; the spirit of liberty”—I lost my place. I 
may never get back to it. 

The Chairman. Take your time. 

Mr. Kurland [continuing]. “Is the spirit which seeks to under¬ 
stand the minds of other men and women; the spirit of liberty is 
the spirit which weighs their interests alongside its own without 
bias; the spirit of liberty remembers that not even a sparrow falls 
to earth unheeded; the spirit of liberty is the spirit of Him who, 
near 2,000 years ago, taught mankind the lesson that it has never 
learned, but has never quite forgotten, that there may be a king¬ 
dom where the least shall be heard and considered side by side 
with the greatest.” 

Thank you, Mr. Chairman. 

[Prepared statement follows:] 



2835 


I 

TESTBOff OF PHILIP B. KURLAf© BEFORE TIC JLDICWRY 
CCmiTTEE OF TIC UNITED STATES SENATE AT HEARINGS 
ON THE fOlI NATION OF ROBERT BOW TO EE AN 
ASSOCIATE JUSTICE OF DC SUPREIC COURT OF 
Tit UNITED STATES ON 17 SEPTEJEER 1987 

Mr. Chairmen: 

fty none is Philip B. Kurlcnd. I an the Willian R. Kenan Distinguished 
Service Professor at The University of Chicago. I have taught in and 
around constitutional lew since 1950, before rtuch I served as lew clerk 
to Judge Jerome N. Frank end then to Justice Felix Frankfurter. For seven 
years, I served this Carmittee as Chief Consultant to Senator San J. Ervin, 
Jr. in his position as Chairmen of the Siixarmittee on Separation of Powers. 

I have kncwi Robert Bork for maty years. I have worked with him. 

Sane of his closest friends have been sene of nv closest friends. Had I 
been called here as a character witness, I should gladly tell you of his 
inpecccble character. That is not irv role. I an here to tell you Why 1 
think his appointment to the Supreme Court would not be good for the 
Court, for the nation, or for the Constitution. 


88-374 0 - 89-5 



2836 


2 

First, I would suggest that the faction of this Qnmittee is to 
estimate, on the bases of his record, »fot a Supreme Court nominee's 
judicial philosophy is <rd then to decide rfiether on the basis of 

t 

that estimate the antidote is ri^tt for the Job. The responsibility 
for that decision is yours; it is cr awesome responsibility. In 
exercising the afrise end consent power, you are agents neither for 
an adwmstrotion nor for o party. YOurs is rather a fiduciary re¬ 
sponsibility to the American people <nd to the Constitution tfcich you 
have sworn to uphold. 

Because so nuch nonsense has been spoken aid published suggesting 
a rubber starp function for the Senate provided only that a naninee has 
demonstrated legal talents end cr absence of criminal corwictions. I 
would offer you a quotation from the most astute student of the Seprara 
Court in modem tines, written over fifty years ago aid so untainted by 
the portisai debate that threatens to mire these hearings. In 1930, 


Professor Felix Frankfurter wrote: 



2837 


3 

Senate opposition to nominations for the 
Snjreme Bench is no novelty in Amen an 
history. The Senate has olwys acted upon 
the constitutional requirement that the 
President "shall appoint . . . judges of 
the Suprere Court" but only Toy aid with the 
advice and consent of the Senate." Partici¬ 
pation tv the Senate in appointrents to the 
Court has been especially active in regard 
to filling the Chief Justiceship. ... the 
Associate Jlistices have similarly hod to neet 
the Senate's constitutional duty of cpprwal. 

Not o few nominations have been actually re¬ 
jected. 

Seldom, indeed, have nominations for the 
Court been opposed on the score of personal 
disqualification. FuxJanentolly, the objections 
have been political. They have concerned the 
general outlook of nominees ipcn the piiolic 
issues that in different periods of the 
Court's history were likely to come before the 
Court. By the very nature of its place in the 
American scheme of gcrverment the Sipreme Court 
is in the strecm of public affairs, aid its 
decisions thus have entangled the Court in 
political controversy. . . . 



2838 


4 

Uhless the President, the Senate, and the 
country are alert to the qualities that Justices 
of the Supreme Court ousbt to possess aid in¬ 
sist upon suitcble appointees, no mechanics will 
save us fron the evils of narrow prepossessions 
tv refers of the Court. Contrariwise, if we are 
fully olive to the indispensible qualifications 
for the hi<b wort of the Court, aid insistent upon 
measuring cppointees accordingly, mechanical 
devises ore superfluous aid obstructive. It is 
because the Suprane Court wields the power that 
it wields, that appointment to the Court is o 
matter of public concern aid not merely a question 
for the profession. In good truth, the Suprane 
Court is the Constitution. Therefore, the mast 
relevant things (bout cn appointee ore his breadth 
of vision, his imagination, his capacity for dis¬ 
interested judgment, his power to discover arid 
suppress his prejudices. Judges mist learn to 
transcend their cvn convictions . . . Therefore it 
is that the men vbo ore given this ultimate authority 
over legislature aid executive, »bo$e vote may de¬ 
termine the well-being af millions aid effect the 
country's future, should be subject to the most 
vigorous scrutiny before being given that power. 

... The country's well-being depends upon o for 
sifted end statesmailike Court. 



2839 


5 

There is irony in the fact that at the manent of the bicentemiol 
celebration of the Constitution, we ore asked to overlook the concern, 
stated in the Declaration of Independence end iterated agoin and again 
in the national and state conventions that produced the Constitution, 
for a judicial branch totally independent of the executive. Executive 
control of the judiciary, judges who could be expected to serve the 
will of the executive, was a form of tyranny that the Franers clearly 
intended to expunge. 

Writ ever the role of the Vtiite House staff, o clearly extraconsti¬ 
tutional governmental force, and the Department of Justice, the renters 
of the Supreme Court were never intended to be ante red among "The 
President's Hen.* 

II 

Second, I should like to suggest, as concisely as 1 can, sane of 
the reasons thy I think you should deny your consent to the nomination 
pending before you. 

1. I think that Robert Bork's appointment would substantially 
help to effect the constitutional revolution that has been port of the 



2840 


6 

Reogcn platform since he entered office. Indeed, it is on the commitment 
to such speciol interest graps os Reverend Folwell's, the Ri^rt to Life 
tovement, the Eagle Foam of Illinois, the Dolphin Society of Californio, 
the Federalist Society, end orgerizations of police and prosecutors, to 
rune just o few, that the Bork nomination was predicated. The claim that 
Bork is a middle-of-the-rood jurist in the tradition of Felix Frcnkfurter, 
John Marshall Horlai, end Lewis Powell was cn afterthought and without 
mjch, if any, basis in fact. 

2. At least since his most recent return to Washington, Bork has 
purported to espouse the nation that constitutional decisions not based 
solely on the text end the so-called "intent" of the authors are invalid. 

The foct is that "originol intent" is not a jurisprudential theory but, 
like Nixon's "strict construction," end Roosevelt's “back to the Consti¬ 
tution" it is merely a slogcn to excuse replacing existing Supreme Court 
judgnents with those closer to the personal predilections of their pro- 
panders. Indeed, I hove it on the hipest authority that history is on 



2841 


7 

inodequote guide to the resolution of constitutional controversies before 
the Court. 

Let rre quote the words of a constitutional scholar of sore distinction. 
Professor Robert Bork, writing in 1968: 

The text of the Constitution, os anyone 
experienced with words mi<ht expect, is 
least precise tfiere it is most inportait. 

Like the Ten Camaxhents, the Constitution 
enshrines profound values, but necessarily 
amts the minor prenises required to opply 
them. The First Amendnent is a prime 
exarple. ... To opply the anendnent, o 
judge oust bring to the text principles, 
judgments, and intuitions not to be found in 
bore words. 

When we turn to the equal-protection clause 
of the Fourteenth Amendment ... we know the 
clause was mecnt to be inportcnt, [but] the 
words tell the judge very little. 

History cai be of considerable help, but it 
tells us much too little (bout the specific 
intentions of the men vho framed, adopted, end 
ratified the great clauses. The record is 



2842 


8 

incoiplete. the nen involved often had vague 
or even conflicting intentions, end no one 
foresaw or could have foreseen, the dis¬ 
putes that charging social conditions end 
outlooks would bring before the Court. . . . 

This view of the limited use of history amounced here by Bork was 
shared by most of the fared jurists who bore the lcbel of "judicial 
restraint," including the three leaders of the school: Holmes, 

Frankfurter, and, perheps the greatest of than all, Judge Learned Hand. 

3. That Bork would find little barrier in stare decisis to a wide¬ 
spread judicial revisionism of "erroneous" decisions derives from his owi 
statements end writings. Of course, Bork could not single-handedly 
overturn the large nuiher of cases that his contsiporary rhetoric threatens. 
But Bork would not be the first Reagai eppointee, he would be the fourth. 

It is true that Bork soid, before this Ccrmittee, I think: "a judge ought 
not to overturn prior decisions inless he is ctsolutely clear that that 
prior decision was wrong and perheps pernicious." Unfortunately, like 
Koko in The Mikado. Bork has "a little list" or not so little a list of 
coses vhich he has mathematized. "ffcbocV believes," he told the Senate, 



2843 


9 

"the Constitution allows nuch less denncJs, the decision in Roe v. Node. 
or in dozens of other coses in recent years ."’ Certainly that was hyperbole 
but not less revealing for it. Indeed, he told this body, that the cure 
for erroneous constitutional judgnents is to be hod through the cppoint- 
ment process. 

A quick currying of just sane of his writings and speeches reveals a 
long list of coses domed by Judge Boric os wanting sipport in the Consti¬ 
tution or its original context and therefore eligible for obliteration 
vhenever five votes can be garnered on the Siprere Court. A sampling in¬ 
cludes the recpportiorment coses; the privacy coses; Shellev v. Krogner . 
ndcing racial restrictive covencnts irenforcecble; Kotzerboch v. Morgan. 
suggesting a congressional power to add to the richts protected by the 
Fourteenth Amerdrent; Skinner v. Oklcham. invalidating a law providing 
for involuntary sterilization of criminals; Engel v. Vitale, boning 
prayer in public schools; Aguilar v. Felton, boning public financing of 
religious schools; Bakke v. Board of Regents, sustaining 'affirmative 
action.' It goes on. The list, indeed, is not short. 



2844 


10 

Then there is the principal thrust of Attorney General Meese's 
original intent thesis, a thesis that BorV seems to have adopted, that 
the Bill of Ritfits is not properly c^plied to State action. That would 
be cn almost vholesole license to the States to avoid the restraints of all 
of the first Eitfit Amenthents. 

A. tot only does Judge ttxVs judicial philosophy bode ill for 
post decisions of the Siprawe Court, it also reveals an uwillinsjwss 
to realize that the principol abjective of toe fraws of our Consti¬ 
tution two hindred years ago was the preservation end advancement of 
individual liberty. Liberty was indeed the watchword of the notional 
convention end of the state ratifying conventions as well. The Consti¬ 
tution did not create individual ricfits; the people brou^rt them to the 
Convention with them end left the Convention with than, some enhmeed by 
constitutionol guarantees. The Bill of Ritfrts in guaranteeing more, mode 
sure that none was adversely affected. Judge Boric however would now limit 
the rights of toe individual to those specifically stated in the doament, 
thereby rejecting his claim to be a textual ist by ignoring the Ninth 
Arendtent vhich provides: "The enureration in the Constitution of certain 



2845 


11 

ritfrts, shell not be construed to deny or disgorge others retoined by the 
people.* 

Again, I have it on the hipest authority that Bork's current re¬ 
stricted view of the people's ritfits is wrong. Again I quote to you from 
Professor Robert Book Wno told us: 

A desire for sore legitimate form of judicial 
activism is inherent in o tradition that ccn be 

j 

colled "Madisonian/ Me continue to believe that 
there are sore things no majority should be ollowed 
to do to us, no matter how democratically it may 
decide to do them. A Madisonian system assured 
that in wide oreas of life, o legislative majority 
is entitled to rale for no better reason than that 
it is o majority. But it also assures that there 
are some aspects of life a majority should not 
control, that coercion in such matters is tyrany, 
a violation of the individual's ri^its. Clearly the 
definition of natural rights carrot be left to either 
the majority or the minority. In the papular under¬ 
standing upon vfiich the power of the Stpreme Court 
rests, it is precisely the function of the court to 
resolve the dilerrma by giving content to the concept 
of natural ritfits in case-try-cose interpretation of 



2846 


12 

the Constitution. This retires the court to hove, 
end to demonstrate the validity of, a theory of 
natural rfcfits. . . . 

He vent on with encanio for Mr. Justice Golcfcerg's rationale for 

i 

Griswold v. Connecticut, a cose he now regards os cnathena: 

Legitimate octivism reqjires, first of oil, 
a warrant for the court to move beyond the rmge 
of sUbstmtive ritfits that can be derived fran 
the traditional sources of constitutional 1cm. The 
case for locating this worrait in the long-ignored 
9th Amendnent was persuasively made by Justice 
Arthur Golcberg. . . . This seems to meat that the 
Bill of Richts is on inccriplete, open-ended docu¬ 
ment, end that the wort, of completion is, at least 
in major port, a task, for the Supreme Court. There 
is sore historical evidence that this is substantially 
vhat Madison intended. 

Bork's current constitutional jurisprudence, however, is essentiolly 
directed to o diminution of minority end individual rights. Thus, in his 
recent Boyer lecture before the Amerian Enterprise Institute, he sneered 
at the view that 'individuals ere entitled to their moral beliefs.' be¬ 


cause he said, 'the result of discanting moral harm is the privatization 



2847 


13 

of morality, vbich requires the law of the carmnity to practice norol 
relativism.' For him constitutional freettm belongs not to the individual 
but to the state. Indeed, to quote him, 'the major freedom of our kind 
of society is the freedom to have a public morality.' A public morality 
created by a moral majority. 

Ghee ogain, I would invoke the argurent of Professor Bork in refuta¬ 
tion of the argurent of Judge Bork. "Moral disepproval alone,' he once 
wrote, "ccmot be accepted as a sufficient rationale for any coercion. If 
it were, there would be no limit to the reach of the majority's power, 
end that contradicts the basic postulate of the Modisonim system.' 

I sutmit that, as Judge Learned Herd has told us, the Constitutim 
ccmot survive irless sustained by 'the spirit of liberty" which gave it 
birth. I would close then by quoting Learned Herd's notion of the spirit 
of liberty, a spirit tftich is totally ebsent from Judge Bork's consti¬ 
tutional jurisprudence. Judge Hand said, in 1944, in the midst of the 
war we were then waging against the forces of darkness: 

... The spirit of liberty is the spirit 
which is not too sure that it is ritfrt; the 



2848 


14 

spirit of liberty is the spirit thich seeks to 
uiderstand the minds of other men and norm; the 
spirit of liberty is the spirit thich weicfis their 
interests alongside its ow without bios; the 
spirit of liberty rementers that not even o 
sparrow falls to earth unheeded; the spirit of 
liberty is the spirit of Him tho, near two 
thousmd years ago, tou^it mcnkind the lesson 
that it has never learned, but has never quite 
forgotten, that there may be o kingdom there 
the least shall be heard aid considered side by 
side with the greatest. 



2849 


The Chairman. Thank you very much, Professor. 

I will begin the questioning. During his appearance before this 
committee, Judge Bork indicated that he would not overturn set¬ 
tled law in several issues. Now, these issues include equal protec¬ 
tion for women, advocacy of law violation in freedom of speech and 
non-political speech—all areas where Judge Bork said he continues 
to disagree with the Court’s substantive doctrines. 

I think that Senator Specter stated our dilemma on these com¬ 
mitments very well when he asked, and I quote, “When the next 
set of facts comes up, if you disagree with the philosophy, how will 
you decide the case? And you answered it, I think, the only way a 
man can answer it: You are going to do your best to uphold your 
oath of office and uphold the Constitution and uphold the princi¬ 
ples of the case.” 

Now, this dilemma for the members of this committee, because of 
Judge Bork’s disagreement on principles, means that his interpre¬ 
tation of the Constitution and the principles in those landmark 
cases will sometimes come in direct conflict: his principles and his 
agreement to uphold precedent. 

So even accepting that he will not overturn settled principles, al¬ 
though he had not defined which are settled and what are not set¬ 
tled principles, notwithstanding the fact that he will not overturn 
certain settled principles because there are too many private expec¬ 
tations built around them, how will he rule on cases applying these 
principles where, by definition, the expectations are not very clear? 
That seems to be one of our dilemmas. 

What do you think his settled law commitments would mean in 
practice as a Justice on the Court? 

Mr. Kurland. I cannot give you an answer to that question, Mr. 
Chairman. The fact of the matter is that I think nobody can deny 
that a Senator’s “philosophy,” a Justice’s philosophy, a Justice’s 
personal predilections are always involved in the judgment that he 
makes. However pure a “judicial restraintist” you may think of 
yourself, there are certain elements of your background, history 
and learning that cannot be disposed of simply by willing it that 
way. 

I have another problem, I must say, about so large a change of 
point of view coming in the course of these hearings. I think those 
commitments which you mentioned are a different point of view 
than were expressed earlier by Judge Bork, either in his speeches 
or in his opinions. 

I did not see much of the hearings preceding today, but I did 
have a feeling that if we had been fortunate or unfortunate enough 
to have television cameras during the time of the Spanish Inquisi¬ 
tion or the Court of Star Chamber, the effect on the witnesses may 
not have been very different then than they are now. In other 
words, I am trying to say that a-- 

The Chairman. I think you said it. [Laughter.] 

Mr. Kurland. What I am trying to relieve myself of is accusing 
you of impropriety or abuse because that is not what I am think¬ 
ing. I am saying that the pressures of responding to 4 or 5 days of 
questioning would not be considered avoiding coercion if what you 
were talking about was a prisoner being dealt with by the police 
who have him in custody. 



2850 


The Chairman. He may have had reason to change his position, 
is what you are saying, I think. 

My time is about up, and you can elaborate on it if you would 
like. But we have heard two other things about Judge Bork repeat¬ 
edly. One is that all those cases were used that would all acknowl¬ 
edge very strong language in deriding the Supreme Court’s deci¬ 
sions, we were told that it was not the decisions he disagreed 
with—the clear implication being that he agreed with all the re¬ 
sults; he just disagreed with the reasoning. 

The second thing is that he really is like Frankfurter or Harlan 
or Black, he is no different than they are in the way in which he 
approaches cases. This is just a good, solid conservative. 

Now, you clerked for Mr. Justice Frankfurter. You also clerked 
for Learned Hand, as I am told. 

Mr. Kurland. That is not right. 

The Chairman. Pardon me? 

Mr. Kurland. I worked at the Second Circuit when he was work¬ 
ing there, but I did not clerk for him. 

The Chairman. You clerked for Justice Frankfurter, though? 

Mr. Kurland. Yes, I did. 

The Chairman. Now, can you respond to that? Taking a page 
from Arlen Specter’s book asking a two-pronged question at the 
end of the 5 minutes. Can you respond to the characterization that 
he really would reach the same results in all these privacy cases, it 
is just the reasoning he disagreed with? And he is just like Frank¬ 
furter, Harlan and Black? Which are two things we have been told. 

Mr. Kurland. You put questions that I find impossible to 
answer, Senator. The problem for me is you have got persons who 
are comparatively, if not absolutely, distinctive. In making com¬ 
parisons with these giants, you have to ask in what particular way 
the comparison is to be made. 

If you are talking about treating the Constitution as a living, 
growing document, concerned with the protection of the liberties of 
the people, I would say that Judge Bork’s statements with regard 
to the cases that he has condemned are not like those of Frankfurt¬ 
er, Harlan, Powell point of view, although I would not put all three 
of them in the same category. 

It is quite true that a good deal of Mr. Justice Frankfurter’s ap¬ 
proach to the exercise of jurisdiction by the Supreme Court was a 
very narrow view of when it should operate. To that degree, Judge 
Bork is in the tradition of strict constructionist as to the Court’s 
jurisdiction. 

But I cannot think of two people’s jurisprudential approach that 
I would consider more different than Justice Frankfurter’s and 
Judge Bork’s. The notions of the breadth and width and depth of 
the Constitution are very different. 

The Chairman. Thank you very much. 

Senator Thurmond. 

Senator Thurmond. Thank you very much. We are glad to have 
you here. I have no questions. 

Mr. Kurland. Thank you, Senator. 

The Chairman. Senator Kennedy. 

Senator Kennedy. Perhaps to be more precise, because clearly 
one of the very important and significant areas which has been 



2851 


pursued by this committee is not just the question of the right to 
privacy but what the Constitution really means in terms of liberty. 
You speak to that in your statement here. 

I think it is fair to suggest that Judge Bork’s concept is that lib¬ 
erty has to be enumerated within the Constitution. He has not 
been able to find other ways of finding protections for some of the 
important areas of liberty which others have found inherent in 
terms of both the Constitution and the Bill of Rights. 

What Justice Frankfurter has talked about is the concept of or¬ 
dered liberty. You responded in a general way. Is there anything 
else that you Find at the basis and the heart of one of your real 
concerns? 

Mr. Kurland. My concern is very much that by providing as 
narrow a construction of the Constitution as possible with regard 
to individual rights and liberties, Judge Bork would be denying the 
essence of purpose behind the Constitution’s origins 200 years ago, 
which was the preservation of all the liberties that the English 
legal tradition had created and were in the process of creating and 
were expected to continue to create. 

I think it is that process, essentially, that Mr. Justice Frankfurt¬ 
er was referring to when he talked about the concept of ordered 
liberty, although the phrase is not his. It comes from Mr. Justice 
Cardozo, I think in Palko v. Connecticut. 

I think it makes all the difference in the world whether you start 
with the notion that the people have all the liberties except those 
that are specifically taken away from them, or you start with the 
notion, as I think Judge Bork now has, that they have no liberties 
except those which are granted to them. 

The fact of the matter is that at the time of the framing of the 
Constitution “we the people” did not confer liberties on “us the 
people.” It did not have to be done. 

Senator Kennedy. You believe that that is a very fundamental 
distinction? 

Mr. Kurland. I do not know of anything more fundamental in 
our Constitution, Senator. 

Senator Kennedy. Second point: You not only wrote about Felix 
Frankfurter, but I think many of us are mindful of your service 
here in working closely with Senator Ervin and his great consider¬ 
ation of the separation of powers. We had the panels earlier today 
that reviewed with us the view of Mr. Bork on the role of presiden¬ 
tial power and the role of the Congress. 

I am wondering whether in reviewing both the writings of Judge 
Bork and his testimony before the committee you have formed any 
impression whether he would be an activist in sustaining a dispro¬ 
portionate amount of power within the presidency as against the 
Congress; or whether you take any issue with his view about the 
appropriate division of power between the Congress and the execu¬ 
tive? 

Mr. Kurland. I suppose, Senator, that one of the reasons I am 
labeled a conservative is that, as I read the Constitution, it gives 
all the powers that it had authority to give to the Congress of the 
United States except for the Presidential power to receive ambassa¬ 
dors and to be Commander-in-Chief of the armed services. I do not 
see the second article creating any powers in the presidency. The 



2852 


presidency’s primary function is to execute the laws that Congress 
enacts. 

With that attitude, talking about my attitude that I just ex¬ 
pressed, it would be hard for me to say that I do not disagree—I 
will avoid the double negatives—I do disagree with the very broad 
reading of presidential authority that Judge Bork has given, has 
spoken about, and I expect would give if the opportunity came to 
him as a Justice of the Supreme Court. 

Senator Kennedy. My time is up, Mr. Chairman. 

The Chairman. Thank you. 

Senator Simpson. 

Senator Simpson. Professor Kurland, I have been interested in 
your testimony and have read your remarks. I have been more in¬ 
terested in your writings over the years which are rather flavorful 
and pungent and filled with exciting alliteration. 

I was taken by that because it seems to me you write an awfully 
lot like Judge Bork. 

Mr. Kurland. One of us should probably resent that remark. 

Senator Simpson. One of you could resent that. I think that is 
true. That could be. 

But the general tenor of your writings—I was a little interested 
in that. In this text here, “Politics, the Constitution, and the 
Warren Court,” you said the Warren Court, as has been suggested, 
the road to hell is paved with good intentions. The Warren Court 
has been among the great road builders of all time if, as suggested, 
the road to hell is paved. 

That was interesting. That sounds Bork-like. This was the one of 
a racially mixed couple to get an injunction against a developer 
who would not sell them a house. You said the court reached this 
worthy goal by “dubious logic and abominable historicism.” Other 
questions, the reapportionment case represented a sterile concept 
of equality. There is an element of Catch-22 in the opinions in 
these cases. 

And then in the criminal procedure cases of the Warren Court, 
“precedents both hoary and young were felled with the precision of 
modem lumberjacks cutting through a forest. The list of opinions 
destroyed by the Warren Court reads like a table of contents from 
an old constitutional law casebook.” 

There are many more of those statements. You called Miranda 
“highly overrated.” You call the poll tax decisions “one of the 
Court’s shakiest opinions.” And you made some statements and 
wrote some articles where you got blasted just as bad as Bork. One 
in 1964, a New Republic article, the year after his article, where 
the New York Times said one of your articles, it said, “It must go 
down as one of the most sarcastic, all-inclusive works of criticism 
directed at the Court in recent years.” 

What I am saying there is that it is difficult for me to hear you 
talk about these things as if people did not do scholarship like 
Judge Bork sometimes, or that perhaps that is not the way it 
should be done. It is not in this statement, but other statements 
like the opinion, “The Battle Over Bork” from the American 
Lawyer, the Chicago Tribune, the Harvard Law Review article 
about the Supreme Court in the 1963 term and the article of 1978 
on the “Irrelevance of the Constitution.” Those are provocative 



2853 


things, and that is why Robert Bork is in trouble, provocative 
things. 

So you, too, as in “The Mikado,” may have had a little list, at 
least about the Warren Court. 

Mr. Kurland. Senator, there are at least two major differences. 
First, I have never been a candidate to the Supreme Court office. 

Senator Simpson. Have you ever thought about it? 

Mr. Kurland. There are only two persons who mentioned the 
possibility: One was Senator Ervin in an over-abundance of gener¬ 
osity, and the other was my mother-in-law. [Laughter.] 

The real difference between us, I will concede that I have criti¬ 
cized and will continue, I expect, to criticize judicial opinions in the 
exercise of what I think is my professorial function. But once the 
Court has rendered its decision, I t hin k that the fact that it is 
based on erroneous reasoning or poor precedent or doctrine does 
not in any way make it an invalid, unconstitutional or reversible 
opinion for that reason. That is where Judge Bork and I part com¬ 
pany. 

There is another distinction, if I may say so, and that is in the 
willingness to read the liberty provisions of the Constitution broad¬ 
ly rather than narrowly. 

Senator Simpson. But you do not have any problem with the hon¬ 
esty and integrity of Judge Robert Bork. 

Mr. Kurland. I will repeat that as often as you ask me to under 
oath. 

Senator Simpson. I think that is important, because there was a 
discussion of the change of his position here before us which cer¬ 
tainly would lead to that conclusion. 

Mr. Kurland. I suggested that I was understanding of the 
amount of pressure that the witness was under after however 
many days he was on the stand. 

Senator Simpson. It was not quite like the Spanish Inquisition. 

Thank you, Mr. Chairman. Thank you, Professor Kurland. 

Mr. Kurland. Thank you, Senator. 

The Chairman. You are giving ground so easily, Senator Simp¬ 
son. 

The Senator from Pennsylvania. 

Senator Specter. Thank you, Mr. Chairman. 

Professor Kurland, you have commented about the Spanish In¬ 
quisition, the Star Chamber, some slight humorous suggestion 
about a coerced confession. I had asked Judge Bork about Ashcraft 
v. Tennessee. We kept him longer than the defendants in Ashcraft 
v. Tennessee. If we decide to keep you here for 5 days, do you think 
by Friday you will support Judge Bork? 

Mr. Kurland. I do not know whether I am more likely to bow to 
pressure than my predecessor in this chair or not. 

Senator Specter. I may make that motion. 

Mr. Kurland. I think we will each claim to be a man of princi¬ 
ple and give you a try at it. 

Senator Specter. I may make that motion at the end of my 5 
minutes to keep you here for 5 days. 

You wrote about Judge Bork saying that he has gone from 
podium to podium since becoming a judge, electioneering to become 



2854 


a Justice. Do I detect some suggestion in that comment that there 
is anything improper about that? 

Mr. Kurland. I regard it as a statement of fact that most Wash¬ 
ington lawyers would confirm. No, I- 

Senator Specter. In this body, it may be a compliment rather 
than a criticism. 

Mr. Kurland. I think earlier today there was discussion here 
about the desirability of persons seeking the office making their po¬ 
sitions known. 

Senator Specter. But is there really anything wrong with that, if 
he has gone from podium to podium campaigning to be a Justice, 
articulating his views, letting his qualifications be known? 

Mr. Kurland. I have not complained about it or criticized it. 

Senator Specter. Professor Kurland, in your statement you have 
referred to Aguilar v. Felton and also to Engel v. Vitale , and I am 
wondering where you derive the source as to his position on these 
cases. 

He made a comment in two of his speeches at the University of 
Chicago and at Brookings, one on Aguilar when it was in the cir¬ 
cuit, and later, saying that there might not be any great mischief. 
But I do not know that he really dealt with Aguilar in sufficient 
detail to say that he approved of it. 

I have read all of tne materials I can find by Judge Bork. I do 
not know that he ever said that he approved of Engel v. Vitale. Do 
you have any source material for those positions? 

Mr. Kurland. You mean that he disapproved of Engel? 

Senator Specter. Well, that he disapproved of Engel v. Vitale, 
that he was in favor—that he took a position saying that school 
prayer was constitutional. 

Mr. Kurland. I cannot tell you that he came out and said that 
in so many words. There were three speeches in a row, one at 
Brookings, one at the University of Chicago, and I have forgotten 
where the third one was. I think it was- 

Senator Specter. I only know of two. I would be interested in a 
third speech where he dealt with those subjects. 

Mr. Kurland. I will see whether that can be supplied to you. 

The general discussions that followed at the University of Chica¬ 
go quite clearly indicated his belief in the over-extension of the sep¬ 
aration provision by the Court. 

Senator Specter. When you say discussion that followed, is that 
beyond his prepared text? 

Mr. Kurland. As far as I know. There is no recording. 

Senator Specter. Well, there is a text of his speech at the Uni¬ 
versity of Chicago. 

Mr. Kurland. Yes, I know. The three texts I suggested- 

Senator Specter. Were you present at the University of Chicago 
speech? 

Mr. Kurland. Yes. 

Senator Specter. And what do you recollect that he said? 

Mr. Kurland. Just as I suggested earlier a belief that the estab¬ 
lishment clause had been over-broadly applied. 

Senator Specter. Because he does not say that in the two texts 
which I have seen, either at the University of Chicago or at Brook¬ 
ings. He writes about the privatization of morality, and he makes 



2855 


some comments about it; but he leaves the question open and does 
not make any comment about constitutionality on those issues. 

Mr. Kurland. Senator, I do not wish to mislead you on those 
propositions. I do not think he came out and said in so many words 
about either of those cases that he regarded them as appropriate 
for the wastebasket. 

Senator Specter. Final question at the bell. Professor Priest from 
Yale testified last week about the current standards post-World 
War II of professors taking very strong positions with very strong 
language, and we have seen a fair amount of Judge Bork’s com¬ 
ments in that respect: illegitimacy of the court, civil disobedience, 
make your arguments to the Joint Chiefs of Staff, et cetera. 

Your writings, very profound—you are nodding in the negative— 
have been of a similar tone. One of the things that we are con¬ 
cerned about, that I am concerned about—I should speak for 
myself—is how the forcefulness of Judge Bork's statements bears 
upon the power of his positions which have previously been ex¬ 
pressed and which have been modified in these hearings. 

My question for you is, considering the writings which you have 
made and considering Professor Priest's statements about the trend 
of the times, post-World War II academicians to speak in very 
forceful language and to obliterate all other philosophies, including 
the institutions even if they are the Supreme Court, does that nec¬ 
essarily reflect the depth of conviction that cannot be overturned; 
or is that more in tone with the way powerful academicians write, 
like yourself and Judge Bork? 

Mr. Kurland. I think academicians like to write in such a fash¬ 
ion as will attract readership and be cogent at the same time. I 
think they express themselves as best they can, and if it is read¬ 
able, so much the better. 

I think we have all tried to get away from the old days when 
every bit of professorial writing looked like an ALR note, a series 
of short statements followed by a long series of citations. 

I do not think that the language that Judge Bork has used can in 
any way be regarded as contumacious or extraordinarily- 

Senator Specter. Hyperbole as opposed to immutable dogma? 

Mr. Kurland. Right. 

Senator Specter. Thank you very much, Professor Kurland 
Thank you, Mr. Chairman. 

Mr. Kurland. Thank you, Senator. 

Senator Kennedy. The Senator from Utah, Mr. Hatch. 

Senator Hatch. Thank you, Mr. Chairman. 

Professor Kurland, welcome to the committee. 

Mr. Kurland. Senator Hatch. 

Senator Hatch. I welcome you as a vital witness because, first of 
all, you are the only academic among all those have called so far in 
opposition to Judge Bork who has any claim at all to legal conserv¬ 
atism, if I can use that as a shorthand phrase. 

We have heard professors holding almost every legal viewpoint 
support Judge Bork's nomination, but among that academics who 
have opposed his nomination, I think you are the only one not oc¬ 
cupying a narrow niche on the left. So I think your testimony is 
very important. 



2856 


With this in mind. Professor, I would particularly welcome you 
on virtually every controversial case and doctrine the committee 
has examined to date, because you have taken a position, as Judge 
Bork has, either the same as he or you have taken a more conserv¬ 
ative one. 

Let me just review those quickly. In your Tribune article and 
your testimony, you compile a long list of cases where Judge Bork 
has criticized various cases, but you fail to note that you were at 
least as harshly critical on most erf the cases you cited as he was. 
As the Chicago Tribune wrote of your criticisms, they said, “Profes¬ 
sor Kurland apparently will not take yes for an answer, at least 
when it comes from Judge Bork.” 

Let me just take some of these one by one. The Harper case, the 
poll tax case you called “one of the Court’s shakiest opinions.” In 
Roe v. Wade, the abortion case, you say it has “no justification.” In 
Griswold, the contraceptive privacy case, you called it a “blatant 
usurpation.” The one-man, one-vote case and the racial covenant 
cases, you called “most unsatisfying.” 

So that even goes beyond Judge Bork because he would uphold 
the Baker v. Carr case, for instance, and the Engel school prayer 
case. 

By the way, I think that the record shows that Judge Bork took no 
position, and has taken no position on that particular school prayer 
case, or at least I am not aware of it, and I do not think you can show 
any writings where he has taken a position. 

Now best of all, you criticize Bork’s Bakke’s writings. On the 
Bakke case, when you found briefs against reverse discrimination 
in both the Defunis and the Webber cases. 

In fact out of the list of nine cases you cited, you have criticized 
five at least as harshly, and on two Bork has taken no position, and 
on one, the Katzenbach case, Bork would not let Congress overturn 
a Supreme Court ruling by a simple majority vote in Congress. 

Now, do you feel that the questions that you and Judge Bork 
raise about the reasoning of some of these cases are extreme? 

Mr. Kurland. Senator, I think I responded to that issue before 
you came into the room. 

Senator Hatch. Well, you did, partially. 

Mr. Kurland. I will—I am not trying to avoid answering it now. 

Senator Hatch. Well, have I misquoted you? 

Mr. Kurland. My criticism of the Supreme Court decisions has 
been at least as harsh as Judge Bork’s criticisms. 

Senator Hatch. I think so. 

Mr. Kurland. The difference, however, is that I do not regard 
my criticisms as removing them from the area of controlling doc¬ 
trine, and as part of the constitutional law of the nation. 

I do not believe that my distaste for whatever the Court has 
done, or the way that it has done it, makes any question about the 
legitimacy of the decisions. 

Senator Hatch. Well, I do not think Judge Bork is any different. 
He respects precedent as well, and certainly has stated- 



2857 


Mr. Kurland. Well, I would challenge that. As I said in my 
statement, and has—and he has written—and before he came 
before this committee—he regarded a large number of decisions as 
unconstitutional and invalid, and ripe for overruling, including at 
least some of those that he testified about here, and explained his 
criticism as being somewhat less sharp than mine. 

Senator Hatch. Well, let me just say this: you say that Judge 
Bork disapproved of the reapportionment cases, and in fact do you 
know whether he ever criticized Baker v. Carr, the reapportion¬ 
ment case? 

I understand, personally, that he would have voted exactly the 
same way in that case, but under different reasoning. He would 
have decided Baker v. Carr under the guarantee of republican gov¬ 
ernment clause of the Constitution, rather than as they decided it. 

Mr. Kurland. I did not see that in his writing. 

Senator Hatch. Yeah, that is part- 

Mr. Kurland. I only saw that he disapproved of the decision. 

Senator Hatch. I see. Well, that is a fact. One last question, and 
that is- 

Senator Kennedy. The Senator’s time is up. 

Senator Hatch. Well, could I just ask this last question? I think 
he will answer it. It is right along the same lines, and then I will 
quit. 

Do you feel that professors like you and Judge Bork—you are, 
and Judge Bork is today—should be free to write provocative arti¬ 
cles on these cases and on the law itself? 

Mr. Kurland. I know that we should be. I have no hesitancy to 
say that I am. 

Senator Hatch. Okay. Thank you. 

Senator Kennedy. Senator Humphrey. 

Senator Humphrey. Thank you, Mr. Chairman. 

Professor, welcome. 

Mr. Kurland. Thank you, Senator. 

Senator Humphrey. Apropos the- 

Senator Kennedy. Would the Senator just yield for a comment? 

Senator Humphrey. Yes. 

Senator Kennedy. I have been told by Senator Biden that we 
will not take a luncheon recess and will continue with the course 
of the hearings. So I would hope that the staff members of the 
members of the committee would so notify their members. I will let 
the chairman speak for himself on that issue. 

The Chairman. The issue being continuing? 

Senator Kennedy. Yes. 

The Chairman. I would like to continue straight through, if we 
could, and has everyone questioned- 

Senator Kennedy. No. The Senator from- 

The Chairman. The Senator from New Hampshire. 

Senator Humphrey. Professor, apropos the discussion which you 
and Senator Hatch just had on the doctrine of stare decisis, I sat 
here through virtually every minute of five days of testimony and 
examination of Judge Bork, and he made it crystal clear, perfectly 
clear, that while he has contested many of the Supreme Court deci¬ 
sions, as you have, and as have many eminent scholars, and, 



2858 


indeed, Justices, that he has a high regard for the doctrine of stare 
decisis. 

That precedent must be respected. It is not sacrosanct of course, 
and no nominee would suggest that it is, but that the Justices must 
move with the greatest caution in overturning previous decisions, 
especially where certain societal expectations have been built up. 

So you seem to be trying to draw a distinction between you and 
Judge Bork, saying yes, that you have both written contentious, 
readable articles, as you put it, lively articles criticizing Court deci¬ 
sions, but somehow, you suggest on the other hand, that Judge 
Bork’s views would be overriding, that he would not have regard, 
or sufficient regard for stare decisis. 

I really believe you to be mistaken. You may be sincerely, and 
probably are sincerely mistaken, but if you had sat here through 5 
days of testimony, at least with my ears, you would not have too 
much concern on that score. 

Mr. Kurland. I assume you are asking me a question and 
my- 

Senator Humphrey. Well, I want to give you a chance to re¬ 
spond. You can do so in any fashion. 

Mr. Kurland. My statement is based on nothing that occurred 
after these hearings started, but on statements that Judge Bork 
made both before congressional committees, senatorial committees, 
and on the podium in the course of the last few years while he was 
on the circuit that Senator Specter was talking about. 

Senator Humphrey. Yes. 

Mr. Kurland. And I think I can supply you, if you would like, 
with a large number of his stated positions about the fragility of 
decisions that he disapproved of. 

Senator Humphrey. Yes. Well, no question about it. No question 
about it. The point is that in upholding stare decisis you need not 
think the underpinnings of a particular decisions are perfectly 
sound. Quite the contrary. That you can legitimately uphold a deci¬ 
sion that you think is perfectly unsound if you believe that it is 
unwise to overturn it for some reason of stability. 

In the last couple of minutes I have, I want to ask you about 
some of the criticisms you have made of some landmark decisions 
in which Robert Bork shares your criticisms. I look at the piece you 
wrote entitled “The Irrelevance of the Constitution: The Religion 
Clauses of the First Amendment and the Supreme Court,” which I 
think is the Villanova Law Review, but, in any event, is it one of 
your prominent pieces. 

You say that—in part, of course—speaking of the Court: “When 
the Constitution affords no mandate it—the Court—will fill the 
hiatus with ersatz constitutional rules of its own making.” 

That is a complaint, I assume. Am I correct? That is a complaint. 
It is not just a mere statement of fact, but it is a complaint. That 
where—to use your words—“When the Constitution affords no 
mandate, the Court will fill the hiatus with ersatz constitutional 
rules of its own making.” 

You go on to say: “This is neither a novel approach nor one lim¬ 
ited to the construction of the religion clauses. One need look only 
to Lochner v. New York, Atkins v. Children's Hospital, for earlier 
examples, to Griswold, to Roe, and to Doe for more recent ones, all 



2859 


blatant usurpation of the Constitution-making function than the 
cases that I have canvassed here.” 

These are criticisms. Am I reading it correctly? You are critical 
of the Court for usurping the Constitution-making function? 

Mr. Kurland. I am critical of substantive due process, yes. 

Senator Humphrey. Well, that of course is the central criticism 
of Judge Bork. He means it in the same regard that you do. 

You know, we have had a lot of discussion in here about privacy. 
It is one of those sensational issues, because people think, my gosh, 
if my neighbors, or my associates knew what happened in my bed¬ 
room, or in my living room, or elsewhere, that life would be very 
much more interesting. 

The point I am trying to make is, no one wants to lose a shred of 
his privacy, but that is not the real point. That is a red herring. 

What the privacy issue has looked at in this hearing is principal¬ 
ly Griswold, and you yourself are, and were critical of the Griswold 
decision, were you not? 

Mr. Kurland. Yes. 

Senator Humphrey. Do you agree with Robert Bork that the 
Court made up its own rules when it came to a decision in Gris¬ 
wold, came to the decision that it did? 

Mr. Kurland. Yes. I think Mr. Justice Douglas made up his own 
rules. 

Senator Humphrey. Made up his own rules. Well, that is- 

Mr. Kurland. May I respond to the problem of privacy as you 
stated it? 

Senator Humphrey. Yes, but let me just ask you this, first. 

Do you agree with Judge Bork, that there is not an unincum¬ 
bered right to privacy in the Constitution? 

Mr. Kurland. There is not an unincumbered right in the Consti¬ 
tution— 

Senator Humphrey. If you look at some—— 

Mr. Kurland [continuing]. To privacy or anything else. 

Senator Humphrey. I do not agree with that. I think there are 
certain very clear—there are certain rights enunciated in the Con¬ 
stitution which are unincumbered in any way, but I do not want to 
get off the focus here. 

Mr. Kurland. Well, Mr. Justice Black used to say that the right 
to speech was unincumbered in any way, but I do not think the 
case is substantiated—that position. 

Senator Humphrey. In any event, you felt that in Griswold the 
Court overstepped reasonable bounds, and it made up its own rules. 
So you agree with Judge Bork, in the case of Griswold ? 

Mr. Kurland. I did, yes. 

Senator Humphrey. And you still do. It is not that you want to 
put TV cameras in everyone’s bedroom, I hope? 

Mr. Kurland. Well, after the discussion I heard a little bit earli¬ 
er in this conference room, I have some question. 

The committee seemed very exercised about the fact that some¬ 
body was looking into their rentals of VCR’s, and regarded that as 
a terrible invasion of privacy, but had no concern about the possi¬ 
bility of the police determining what form of sexual activity is en¬ 
gaged in between consenting adults. 



2860 


That was not something that aroused their ire, and venomous 
attack on the press. 

Senator Humphrey. All right. Thank you, Mr. Chairman. 

I just wanted to make the point that even someone who is ap¬ 
pearing here in opposition to confirmation agreed with the nomi¬ 
nee on the Griswold case on which this whole privacy brouhaha in 
these hearings has turned. 

Mr. Kurland. Let me make my point for a third, and surely the 
last time. 

My disagreements with Bork have not been over the criticisms of 
the cases that he rejects, but about the effect that those criticisms 
should have. I do not think that criticism by any professor is suffi¬ 
cient to invalidate a Supreme Court judgment. 

Senator Humphrey. Of course, and I am glad to hear you say 
that. I would simply respond by suggesting that you read the tran¬ 
script. 

The doctrine of stare decisis was repeatedly brought up. Senator 
Specter questioned the nominee very, very closely on this, and I 
think you will be a good deal reassured if you read that. 

He was under oath, as all witnesses have been, and I think he 
spoke very sincerely. 

Mr. Kurland. Thank you, Senator. 

The Chairman. Professor Kurland, is your view on the right of 
privacy the same as Judge Bork’s, to the best of your knowledge, to 
the extent that one exists or does not exist within the Constitution? 

Mr. Kurland. It is not now, no. That is, I have come to realize 
this through the book that I just edited, which was the—it is called 
“The Founder's Constitution" and consists of all of the, or most of 
the writings and documents relating to the framing. 

I have come to a different realization of the breadth of the rights 
of Englishmen, that was sought to be protected by the Constitution 
makers. 

So that while I was prepared to argue as to whether the right of 
privacy should be included among those rights, my position now is 
that there is no doubt about the Court’s capacity to create that 
right. Not to create it, but to affirm it. 

Senator Kennedy. Mr. Chairman, I just had one other area. I 
would be glad to make up the time I might use on this question 
this afternoon, but I think it is important. 

In the earlier exchange, Professor, we talked about the different 
concepts of liberty, and I think the record is very clear about your 
assessment of Judge Bork’s view of the Constitution. 

Now we have a second issue—on the question of precedents. The 
record is complete with the statements of Judge Bork—he was talk¬ 
ing about the ratcheting up of various decisions, and then, in the 
last part of his statement that was played here before the commit¬ 
tee he said: “I don't think precedent is all that important. I think 
the importance is what the Framers are driving at, to go back to 
that.” 

Now he was asked about the role of precedents, and he was very 
clear that he would follow precedent as it relates to the commerce 
clause, the Brandenburg decision, as it related to the first amend¬ 
ment, and the legal-tender decisions. 



2861 


But he was not as clear in one of the areas about which I think 
many of us are most concerned, and that is with regard to individ¬ 
ual rights and liberties—the privacy issue. 

Given what he has said as an originalist thinker, and given his 
statements here about the limitations of the Constitution in en¬ 
hancing, or even defining, the kinds of rights and liberties that are 
being protected, would this be an area that would be of very consid¬ 
erable concern to you, should he be approved—that there may be a 
significant threat to the rights and liberties of American citizens? 
Or at least that his decisions would not enhance those rights and 
liberties, such as privacy, and as Griffin Bell pointed out, the right 
to be left alone? 

Mr. Kurland. I want to separate two things because if the argu¬ 
ment turns solely on stare decisis, I am unable to respond to Sena¬ 
tor Humphrey’s statement about the testimony that was given by 
Bork, and I am certainly unable to put myself in your place as to 
assessing its credibility. 

As to Judge Bork’s announcement of a majoritarian principle 
which would give to the—in the future—which would give the ma¬ 
jority in this country the right to impose a morality on the minori¬ 
ty, I find that frightening and a clear violation—or would be a 
clear violation of the Bill of Rights. 

Or, I would add, the rights of the people are not confined to those 
which might derive from the ninth amendment. The suggestion 
you made about Mr. Justice Frankfurter’s position certainly puts 
that into the due process clause of both the 5th and the 14th 
amendments. 

And I have a paper which has not been mentioned. I do not 
doubt that it need not be mentioned, about the possible use of the 
privileges and immunities clause of the 14th amendment to come 
to the aid of individual liberties in the future. 

The Chairman. Thank you very much professor, we appreciate 
your time and your testimony. 

Our next panel—they may not all be here; I guess they all 
thought we were going to break for lunch, so some may still be at 
lunch, but we will call them as they come in—is made up of A. 
Raymond Randolph, Stuart Smith, Jewel LaFontant, and Governor 
Richard Thornburgh. If they are here, if they will come forward— 
and while they are coming forward, I will introduce them. 

First is A. Raymond Randolph. Mr. Randolph is currently a part¬ 
ner in the law firm of Pepper, Hamilton & Scheetz, and was 
Deputy Solicitor General. Second is Stuart Smith. Mr. Smith is a 
partner in the New York City law firm of Shea & Gold, and was a 
tax assistant to the Solicitor General. Third, Ms. Jewel LaFontant. 
Ms. LaFontant is a senior partner in the Chicago law firm of 
Vedder, Price, Kaufman and Kammholz, and was Deputy Solicitor 
General. And the fourth member of the panel is Richard Thorn¬ 
burgh, who is the distinguished past Governor of the State of Penn¬ 
sylvania, the Commonwealth of Pennsylvania, between 1979 and 
1987. Governor Thornburgh was Assistant Attorney General for 
the Criminal Division. 

Would you all please stand and be sworn. 

[Witnesses stand.] 



2862 


The Chairman. Do you swear the testimony you are about to 
give is the whole truth and nothing but the truth, so help you God? 

[All say “I do”.] 

The Chairman. I welcome you all, and I apologize if you were 
sent mis-signals here as to us moving forward, and I appreciate 
your acceding to the minority’s request to allow former Attorney 
General Griffin Bell to precede you. Your understanding is very 
much appreciated. 

Senator Kennedy. Would the Chairman yield? 

The Chairman. Surely. 

Senator Kennedy. Just one item in Governor Thornburgh’s biog¬ 
raphy has been left out. He is currently the director of the John F. 
Kennedy Institute of Politics up in Cambridge. I’ve enjoyed work¬ 
ing with him, and he is doing an outstanding job there. So I want 
to extend a personal welcome to him as well as to the other mem¬ 
bers of the panel. 

The Chairman. I apologize, Governor. 

Now, do you have a preference in which you will precede? All 
right, we will start with Governor Thornburgh and we will move 
from- 

Governor Thornburgh. By dint of seniority and not of wisdom, 
Mr. Chairman. 



2863 


AFTERNOON SESSION 

TESTIMONY OF A PANEL CONSISTING OF RICHARD THORN¬ 
BURGH, A. RAYMOND RANDOLPH, STUART SMITH, AND JEWEL 

LaFONTANT 

Mr. Thornburgh. Good afternoon to you, Mr. Chairman, and the 
members of the committee. I am here in support of Judge Bork’s 
nomination. I served with Judge Bork in the federal government 
prior to my 1979 election as Governor of Pennsylvania. During the 
years from 1975 to 1977, I served by appointment of President 
Gerald Ford as Assistant Attorney General in charge of the Crimi¬ 
nal Division of the U.S. Department of Justice, and in that role 
worked closely with Judge Robert Bork, then the Solicitor General 
of the United States. 

In those immediate post-Watergate years, restoring the confi¬ 
dence of the American people in the integrity of their government, 
and the people who served in government, was a number one prior¬ 
ity of the Department of Justice. As part of this effort we estab¬ 
lished the Public Integrity Section of the Criminal Division, which 
has, over the past 10 years, provided an effective mechanism to 
assure the prosecution of those in public life who seek to operate 
for private gain and not for public good. 

During my service in the Department of Justice, I worked closely 
on many matters with Judge Bork relating to the integrity of gov¬ 
ernment and the enforcement of our criminal laws. I observed him 
to be a strong advocate of fair and effective law enforcement, com¬ 
mitted to ensuring high standards in government as well as the 
protection of what I regard as the first civil right of all Americans, 
the right to be free from fear of violent crime in their homes, in 
their streets, and in their communities. 

I came to know Bob Bork as an extremely able and intelligent 
lawyer. I also came to know Bob Bork to be a man of personal in¬ 
tegrity and a man of commitment to the rule of law. I know that 
Bob Bork shares with me a deep concern in ensuring that the 
criminal laws of this country are enforced through effective investi¬ 
gation and fair trials conducted in keeping with the Constitution of 
this nation. 

Earlier this month I participated in events in Philadelphia cele¬ 
brating the 200th anniversary of the signing of our Constitution, 
that document which is the underpinning of our society and has 
enabled the United States to develop and grow into the greatest 
nation in the history of the world. The events there were moving, 
and the commemoration of that document over the past several 
months has been exceedingly positive and productive for this coun¬ 
try. 

We in this country need to be reminded of those principles upon 
which our nation was founded. We need to be reminded of the com¬ 
promises made by the Founders, as well as the steps they took in 
writing into the Constitution procedures to review and resolve 
those issues which could not be foreseen in their era. We need to be 
reminded that no one person, whatever position that person holds 
in our government, rules with full and complete authority, and we 
need to be reminded of the great precedents which are embodied in 
the Constitution, the amendments to it, the laws which have been 
written in furtherance of the goals therein established, and the 



2864 


limits placed on the exercise of power by all three branches of gov¬ 
ernment. 

This committee has the responsibility established in that Consti¬ 
tution of providing for advice and consent on nominations made by 
the President. On this nomination you have heard from a wide 
number of distinguished Americans, and you have heard a wide va¬ 
riety of views, many of them in conflict with one another. 

After reviewing all of the testimony and the comprehensive 
record of Judge Robert Bork as a lawyer, as a professor, a Solicitor 
General, and as a judge, I believe you will find him to be a staunch 
believer in that constitutional system, who would be a distin¬ 
guished member of the Supreme Court of the United States. 

Thank you, Mr. Chairman. 

[Prepared statement follows:] 



2865 


TESTIMONY or 

DICK THORNBURGH 

BEFORE THE JUDICIARY COMMITTEE OF THE 
UNITED STATES SENATE 

SEPTEMBER 28, 1987 

Good Homing, Nr. Chairman and members of the Committee. Hy 
name is Dick Thornburgh. I currently serve aa the director of the 
Inatituta of politics at the John P. Kennedy School of Government 
at Harvard, and aa a lawyer in private practice with the firm of 
Kirkpatrick 8 Lockhart in Pittsburgh. 

Prior to my 1979 election as governor of Pennsylvania, I 
served the federal government for eight years in the law 
enforcament field. During two of those years, from 1975 to 1977, I 
was assistant attorney general in charge of the Criminal Division 
of the Unitad States Department of Justice and in that role I 
worked closely with Judge Robert Bork, than the Solicitor General 
of the United States. 

In those immediate poet-watergate years, restoring the 
confidence of the American people in the integrity of their 
government and the people who served in government was a number one 
priority of the Department of Justice. 

As a part of this effort, we established the Public Integrity 
section of the Criminal Division, which has, over the past 10 
years, provided an effective mechanism to ensure the prosecution of 
those in public life who seek to operate for private gain and not 
for public good. 


During my service in the Department of Justice, I worked 
closely on many matters with Judge Bork relating to the integrity 
of government and the enforcament of our criminal laws. I observed 



2866 


him to be a strong advocate of fair and effective law enforcement, 
committed to ensuring high standards in government too, as well as 
the protection of what I regard the first civil right of all 
Americans -- the right to be safe from fear of violent crime in 
their homes, in their streets and in their communities. 

I came to know Bob Bork as an extremely able and intelligent 
lawyer. 

I also came to know Bob Bork to be a man of personal Integrity 
and a man of commitment to the rule of law. 

I know that Bob Bork shares with me a deep concern in ensuring 
that the criminal laws of this country are enforced through 
effective investigation and fair trials conducted in keeping with 
the Constitution of this nation. 

Earlier this month, I participated in events in Philadelphia 
celebrating the 200th Aniversary of the signing of our 
Constitution, that document which is the underpinning of our 
society and has enabled the United States to develop and grow into 
the greatest nation in the history of the world. 

The events there were moving, and the commemoration of that 
document over the past several months has bean exceedingly positive 
and productive for this country. 

We in this country need to be reminded of those principles 
upon which our nation was founded. 

We need to be reminded of the compromises made by the 
Founders, as well as the steps they took in writing into the 
Constitution procedures to review and resolve those issues which 
could not be foreseen in their era. 

We need to be reminded that no one person, whatever position 
that person holds in our government, rules with full and complete 



2867 


authority. 


And, ue need to be reminded of the great precedents which 
are embodied in the Constitution, the amendments to it, the laws 
which have been written in furtherance of the goals therein 
established and the limits placed on the exercise of power by all 
three branches of government. 

This committee has the responsibility, as established in that 
Constitution, of providing for advice and consent on nominations 
made by the President. 

On this nomination, you have heard from a wide number of 
distinguished Americana, and you have heard a wide variety of 
views, many of them in conflict with one another 

After reviewing all of the testimony, and the comprehensive 
record of Bob Bork as a lawyer, a professor, as Solicitor General, 
and as a Judge, I believe you will find him to be a staunch 
believer in our Constitutional system snd would be a distinguished 
member of the Supreme Court of the United States. 


f * # * 


88-374 0 - 89 -6 



2868 


The Chairman. Thank you very much. 

Mr. Randolph. 

TESTIMONY OF A. RAYMOND RANDOLPH 

Mr. Randolph. Thank you, Mr. Chairman and members of the 
committee. I would like to address the committee as a member of 
the bar of the Supreme Court and as someone who has twice 
worked in the Office of the Solicitor General of the United States. 

From the period of 1973 to 1977, when Robert Bork served as So¬ 
licitor General, there was, with the exception of the Justices them¬ 
selves, no more powerful person in America with more opportunity 
to influence the course of Supreme Court decisions than Robert 
Bork. As Solicitor General he was involved in more than one-half 
of all cases decided by the Supreme Court over a 4-year period. As 
Solicitor General, he shaped the government’s arguments, decided 
what cases to present to the Supreme Court, and how. He was the 
top litigating officer in the federal government, in charge of all of 
its Supreme Court litigation. 

During these hearings something has been forgotten—namely to 
what extent one can gain an insight into how Robert Bork would 
perform as an Associate Justice of the Supreme Court by looking at 
his performance as what is sometimes called the “tenth Justice of 
the United States,” that is. Solicitor General. 

As Solicitor General, Robert Bork’s record was outstanding. I 
have followed these hearings carefully and there has not been a 
single witness who has disputed that assessment. 

When I was asked to return to the Solicitor General’s office in 
1975, after having worked there for 3 years under Dean Erwin 
Griswold, a great Solicitor General himself, I knew but three 
things about Robert Bork. I knew he had been a Yale law profes¬ 
sor, I knew that he fired Archibald Cox, and I knew that he had 
written an Indiana Law Journal article, which I had read. 

I did not leap at the opportunity. Instead I talked to people who 
knew Judge Bork and had worked with him. One of those persons 
was Lawrence G. Wallace, who has been mentioned earlier in this 
hearing, and who is now perhaps best known for his refusal to sign 
the Bob Jones University brief. Lawrence Wallace has served many 
years in the Solicitor General’s Office he is still there. For years he 
was in charge of the government's civil rights cases in the Supreme 
Court. He was a law clerk to Justice Black, and he is a personal 
friend of mine. Mr. Wallace gave me what turned out to be excel¬ 
lent advice: “Make your judgment on the basis of the experience of 
those who have worked with Judge Bork, which includes myself, 
particularly in civil rights cases.” He also told me that civil rights 
enforcement had proceeded apace under Robert Bork’s tenure. 

I also called Judge Henry J. Friendly, whom I had clerked for 
years earlier. He gave me the same advice. He knew Alexander 
Bickel, and he had consulted with him. In watching these hearings, 
I have been reminded of the preface to Judge Friendly’s book 
when, after years on the bench, he had published a collection of his 
articles, some of which were very critical of Supreme Court deci¬ 
sions. What Judge Friendly said in the preface to his book “Bench- 



2869. 


marks” ought to be in the preface to the collection of Judge Bork’s 
works as they have been submitted to this committee. I will quote: 

“Although I would put many of the thoughts expressed in these 
papers differently today and would reject a few altogether, I have 
thought it best to leave them substantially as they were writ¬ 
ten, . . .”—and this is the essential line—“hoping that readers will 
have the kindness to give some regard to the dates. Attempted re¬ 
writing would create a patchwork—neither what I wrote yesterday 
nor quite what I would say today.” There is great wisdom in those 
remarks. 

My years with Judge Bork confirmed everyone’s assessment. One 
of the first cases I handled, within weeks of coming to the office, 
involved a pure speech case in which a gentleman had violated 18 
U.S.C. 871, a federal statute making it a crime, without any “clear 
and present danger” overlay, to threaten the life of the President 
of the United States. Did Judge Bork push that case to its limits? 
Did he draw upon his Indiana Law Journal piece in the hope of 
having the Supreme Court adopt some agenda? No, that is not at 
all what happened. We studied the record in the case, and even 
though the gentleman’s defense attorney had not raised it, we 
found that the defendant had been deprived of a fair trial, and we 
did what we were required to do: do justice. We confessed error in 
the Supreme Court of the United States, and the Court reversed 
his conviction. 

I would like to end on one note. I have been practicing law before 
the Supreme Court for 17 years. I do not want a Justice who is pre¬ 
dictable. I want a Justice who is openminded, and fair, who can be 
persuaded, who is not bound and controlled by sympathy. I want, 
in short, a Justice who is neutral, because otherwise my role as an 
advocate before the Court is of little use. 

Robert Bork would make that kind of Justice. 

[Statement follows:] 



2870 


STATEMENT OF A. RAYMOND RANDOLPH 
TO THE SENATE JUDICIARY COMMITTEE 
SEPTEMBER 28, 1987 


Mr. Chairman and Members of the Committee: 

I appear here today in support of the nomination of Judge 
Robert H. Bork to be an Associate Justice of the Supreme Court of 
the United states. 

I am a partner in the Washington office of Pepper, Hamilton 
S Scheetz. By way of introduction, I have included a 
biographical sketch in the margin. 1 

I wish to address the Committee as a member of the Bar of 
the Supreme Court, as a lawyer who has twice served in the Office 
of the Solicitor General of the United States, and as a friend 
and former colleague of Judge Bork. 

From 1973 to 1977, Robert H. Bork served as Solicitor 
General of the United States. His performance was outstanding 
and no witness before this Committee has — or could — say 
otherwise. There is no better measure of what one could expect 
from Robert Bork as an Associate Justice. Yet his record as 
Solicitor General has been buried in an avalanche of testimony 
and materials about other matters. That is indeed unfortunate. 


1. B.S. Drexel University (1969); J.D. University of 
Pennsylvania Law School f summa cum laude )(19691; Managing Editor, 
Law Review. 

Law Clerk to Judge Henry J. Friendly, United States Court of 
Appeals for the Second Circuit (1969-70). 

Assistant to the Solicitor General of the United States 
(1970-73); ; Deputy Solicitor General of the United States (1975- 
77); Special Counsel, Committee on Standards of Official Conduct, 
U.S. House of Representatives (1979-80). 

Special Assistant Attorney General, State of Montana, 1983 - 
(honorary); Special Assistant Attorney General, State of New 
Mexico (1985 -); Special Assistant Attorney General, State of 
Utah (1986 -). 

Member, American Law Institute; American Trial Lawyers 
Ass'n; Supreme Court Historical Society. 

Adjunct Professor of Law, Georgetown Law Center (1974-78) 

Bar Memberships: Supreme Court of the United States; United 
States Courts of Appeals for the First, Second, Fourth, Fifth, 
Sixth, Seventh, Ninth, Eleventh and D.C. Circuits; Supreme Court 
of California; District of Columbia Court of Appeals. 



2871 


With the exception of the Justices themselves, there was no 
person in America who had more power and opportunity to influence 
Supreme Court decisions and the development of constitutional law 
than Robert Bork when he served as Solicitor General. 
Participating in more than half of all cases the Supreme Court 
decided during those four years, Solicitor General Bork not only 
shaped the cases as they were presented to the Supreme Court, but 
also played an important, indeed critical, role in determining 
which cases the Supreme Court would have an opportunity to 
decide. 

Despite, or perhaps because of, his vital position as the 
bridge between the Judiciary and the Executive, Solicitor 
General Bork had extraordinary independence. He decided what 
position to take on behalf of the government and whether to 
confess error in cases the government had won in the lower 
courts; he determined whether to file amicus curiae briefs in 
cases to which the government was not a party and what should be 
said in those briefs; and he sat in Judgment of hundreds of 
requests to allow the government to appeal from an unfavorable 
decision or to seek Supreme Court review. In no case during that 
period, did the federal government ask — or refuse to ask — the 
Supreme Court for relief without Solicitor General Bork's careful 
review and authorization. 

Shortly after Robert Bork left office, the new 
Administration studied the independence of the Solicitor General 
and concluded that it had been established by Robert Bork and his 
distinguished predecessors in their steadfast performance of four 
basic functions; "The Solicitor General must coordinate 
conflicting views within the executive branch; he must protect 
the Court by presenting meritorious claims in a straightforward 
and professional manner and by screening out unmeritorious ones; 
he must assist in the orderly development of decisional law; and 
he must ’do Justice' — that is, he must discharge his office in 
accordance with law and insure that improper concerns do not 
influence the presentation of the Government's case in the 
Supreme Court.* Office of Legal Counsel, Department of Justice, 



2872 


tferoprandun for the attorney General Re; The Role of the Solicitor 
General (1977). 

As a young lawyer finishing a clerkship with one of the most 
distinguished judges in this century. Judge Henry J. Friendly, 
the Solicitor General's Office was where I wanted to start my 
legal career. In 1970, I became an Assistant to the Solicitor 
General, serving under then-Solicitor General Erwin N. Griswold, 
the former Dean of the Harvard Law School who had been appointed 
by President Johnson. During the next three years, I argued 
cases before the Supreme Court and wrote briefs for the 
government involving a variety of issues. In May 1973, shortly 
before Dean Griswold departed, I left the "S.G.'s* Office for 
private practice. 

In early 1975, I was asked whether I would be interested in 
returning as a Deputy Solicitor General under then-Solicitor 
General Bork. Of Robert Bork, I knew only that he had been a 
Yale law professor, that he had fired Archibald Cox and that he 
had published a provocative article — or more accurately, 
speech — in the Indiana Law Journal, which I had read. 

By that time. Judge Friendly had written a large number of 
articles, some quite critical of Supreme Court decisions, and 
had collected some of them in a volume entitled Benchmarks 
(1967). In considering the Indiana Law Journal piece published 
before Robert Bork had become Solicitor General, I was reminded 
of what Judge Friendly had written in the preface to Benchmarks 
(p. viii): "Although I would put many of the thoughts expressed 
in these papers differently today and would reject a few 
altogether, I have thought it best to leave them substantially as 
they were written, hoping that readers will have the kindness to 
give some regard to the dates. Attempted rewriting would create 
a patchwork — neither what I wrote yesterday nor quite what I 
would say today." The wisdom of that message was important to me 
then, twelve years ago; it is, I believe, all the more important 
today in light of the course of these hearings. 

Before accepting the position as a Deputy Solicitor General, 
I spoke at length with I^vrence G. Wallace, a former law clerk to 




2873 


Justice Hugo Black. Mr. Wallace was also then a Deputy Solicitor 
General, as he still is, and for many years had been handling the 
government's civil rights litigation in the Supreme Court. (As 
Mr. Coleman testified, Mr. Wallace later became known for his 
refusal to sign the government's brief in the Bob Jones 
University caae.l We had worked together on important cases 
supporting civil rights during my previous tenure in the S.G.'s 
Office and had won several major victories. Mr. Wallace spoke 
highly of Solicitor General Bork, told me that he was a decent 
and fair-minded man, and that civil rights enforcement had 
proceeded apace under his supervision. Judge Friendly knew of 
Robert Bork through Alexander Bickel at Yale and he too advised 
me to accept the position. 

I began working as a Deputy with Solicitor General Bork in 
January 1975. The Department of Justice was back on an even 
keel, having changed remarkably since my departure in the spring 
of 1973 when morale was at a low and the story of Watergate was 
beginning to unfold. A short time after my arrival, I began to 
appreciate Robert Bork's extraordinary qualities. 

The Supreme Court had taken a case ( Rogers v. United States ) 
Involving a federal statute (la U.S.C. 871) making a form of pure 
speech a felony, without any ''clear and present danger" 
qualification. The statute punished by up to five years' 
imprisonment willful threats on the life of the President and had 
earlier been held constitutional in Watts v. United States . 394 
U.S. 705. 

I was tne Deputy in charge of the Rogers case. One might 
have supposed that Solicitor General Bork would have pushed the 
case to limit, drawing on thoughts expressed in his Indiana Law 
Journal article, but that is not what happened. In reviewing the 
record in preparation for briefing the case, we discovered that 
notes had passed between the judge and jury outside the presence 
of counsel. Although the defendant's attorney had never raised 
the point and could have been deemed to have waived it, we 
determined that the defendant had been denied a fair trial. 
Solicitor General Bork therefore directed that United States "do 



2874 


justice* and confess error, which we did. As a result, the 
Supreme Court reversed the conviction. Rogers v. United States , 
422 U.S. 35 (1975). 

Thus began my time with Robert Bork, and for the next two 
years we worked together daily, holding countless meetings with 
those inside the government and out who sought to persuade the 
Solicitor General to take particular positions in the Supreme 
Court or to authorize petitions for Supreme Court review. From 
morning to evening, day in and day out, the great constitutional 
issues of the day filled our discussions, as hundreds of cases 
poured into the Office for briefing as they made their way to the 
Supreme Court. Did Solicitor General Dork have an "agenda*? 
Absolutely not. Was he a "rigid ideologue?" Ridiculous! Did he 
seek to set back civil rights or individual rights or women's 
rights? Absurd! 

There is one description of Robert Bork that is accurate 
above all others. Biography often reveals as much about the 
writer as his subject and when Robert Bork wrote this about his 
departed friend, Alexander M. Bickel, he was in fact also 
describing himself j "He regarded every book, every article, as an 
experiment, not a final statement. He was always, moreover, open 
to argument, and his thinking changed in response to it, as well 
as to his own experience and second thoughts." Just as 
important, "because he was not frozen into a system, because he 
believed in the central importance of circumstance, the limited 
range of principles, the complexity of reality, he learned and 
evolved. It is impossible to give a snapshot of his philosophy. 
It was moving, deepening, to the end of his life." 

This is the Robert Bork I knew when we worked together. This 
is the Robert Bork I know today. A moment's reflection shows that 
this is the Robert Bork the Committee heard during five days of 
calm, frank, open and dispassionate testimony. 

During my years with Solicitor General Bork, there were many 
important cases, but one deserves special mention because it 
aroused so much passion and public debate. A ruling by the 
Supreme Court in 1972, on procedural grounds, had resulted in 
nullifying State and federal death penalty statutes. Furman v. 



2875 


Georgia , 408 U.S. 238 (1972). Within a few short years, the 
legislatures of 35 States and the Congress of the United States 
had reenacted death penalty statutes complying with the 
procedural requirements of Furman . The issue whether the death 
penalty violated the Eighth Amendment to the Constitution was 
thus joined. The issue was argued once in the 1974 Term ( Fowler 
v. North Carolina , No. 73-7031) and then set for reargument in 
the next year. In the meantime, the law reviews — particularly 
the Yale Law Journal — churned out reams of material on the 
subject. 

As is nearly always the case in Supreme Court practice, what 
mattered was not what the law professors had to say. Instead, it 
was the Brief amicus curiae submitted by Solicitor General Bork, 
and signed by him, myself and Frank H. Easterbrook, then an 
Assistant in the Office and now himself a federal court of 
appeals judge, and Solicitor General Bork's stirring oral 
argument in the case by special leave of the Supreme Court. 

At the center of the controversy stood the opposing 
argument, which urged the Court to declare the death penalty 
unconstitutional in violation of the Eighth Amendment because it 
contravened evolving standards of decency in America. Solicitor 
General Bork's answer is worth quoting at length because it 
captures so very much of his approach to arguments that, in one 
form or another, insist that the Supreme Court should fasten its 
moral views on the nation. 

After pointing out that in the preceding few years 35 States 
and Congress had passed death penalty statutes, Solicitor General 
Bork's Brief stated as follows: 

How then can it be declared by this Court, by any 
court, that the death penalty contravenes evolving 
standards of decency or contemporary notions of human 
dignity or society's currently-held moral values? The 
framers of the Constitution "might have made the judge 
the mouthpiece of the common will, finding it out by 
his contacts with the people generally; but he would 
then have been ruler, like the Judges of Israel." 



2876 


[Learned Hand, *Uow Far is a Judge Free in Rendering a 
Decision?" <1935), in The Spirit of Liberty 109 
(Dilliard ed. I960}]. The question cannot be avoided: 
if this Court were to hold that the death penalty 
violates evolving standards of decency, would not one 
then be required to conclude that 35 legislatures and 
the Congress of the United States are unenlightened, 
that they are out of step with contemporary moral 
standards and the will and spirit of the people who 
elected them? Courts announce their view of society's 
standards of decency and, by doing so, encourage public 
acceptance of what can at best be only a prediction. 

But with respect to the death penalty the Court has 
previously spoken [in Furman 1 and it has seen the 
response. 

This is not to say that a position espoused by an 
enlightened few is to be ignored. It is not. In all 
societies, in all ages, the ideas of those In a 
minority have influenced and inspired those in the 
majority. But this describes the legislative process, 
not the judicial. Only when a minority opinion has 
gradually made its way to acceptance by the society can 
we be sure that it was and is the enlightened view and 
not merely an unpopular and unpersuaslve opinion. If 
judges anticipate the moral verdict of society, they 
will frequently anticipate incorrectly and fasten their 
own views upon the nation in the name of enlightenment. 
Such a theory of judicial power resembles too closely 
Rousseau's concept of the general will, which is 
entitled to govern even when possessed only by a 
minority, and is antithetical to the tenets of 
representative democracies. If, as the Eighth 
Amendment contemplates, the people are to give their 
verdict of what is cruel and unusual, the people — 
through their elected representatives — must sit in 
j udgment. 



2877 


The result of Solicitor General Bork's arguments is of 
course well known. In Greac v. Georgia . 428 U.S.153 (1976), and 
its companion cases, the Supreme Court held by a margin of 7 to 2 
that the death penalty does not violate the Constitution. The 
opinions of the Justices In the majority reflect the position and 
arguments set forth for the United States by Solicitor General 
Bork. 

I would like to close on two notes. First, Judge Bork would 
make the kind of Justice that advocates in the Supreme Court 
should welcome. I have been practicing before the Supreme Court 
for 17 years. The qualities any advocate wants in a Justice are 
the antithesis of 'predictability.* We want neutrality, open- 
mindedness and the willingness to be persuaded by reasoning and 
argument. The late Justice Potter Stewart was such a Justice and 
when the Bar of the Supreme Court met to honor his memory, the 
words of another 'distinguished jurist' were quoted to describe 
Justice Stewart's approach to judging. That distinguished jurist 
was Judge Robert Bork and Judge Bork's words bear repeating 
here: the 'abstinence from giving his own desires free play, 

[the] continuing and self-conscious renunciation of the power, 
that is the morality of the jurist.' Bork, Tradition and 
BgraUtv in Consitutlonal Law , p. n (1984). 

Finally, I urge the Committee to consider and evaluate Judge 
Bork in the spirit in which the Framers created the Constitution. 
As Judge Friendly wrote,^ the Constitution demands, modestly but 
Insistently, 'a spirit of moderation, of compromise, and of 
placing the public good above private ends.' Judge Henry J. 
Friendly, The Constitution , in Equal Justice Under Law , at p. 19 
(Dep't of Justice Bicentennial Lecture Series 1976). That is the 
spirit in which Judge Bork appeared before this Committee. It is 
now for the Committee and for the full Senate to show the people 
of America and the historians of tomorrow that it too _shares the 
same abiding spirit. 

2. I cannot resist a digression here. Judge Bork has been 
disparaged for his critique of the Supreme Court's decision in 
Shelly y. Kraemer , 334 U.S. 1 (1948). He was scarcely alone. 
Among the scholarly works on this subject. Judge Friendly's 
analysis of the case is worthy of the Committee's consideration 
and I have included it as an attachment to this statement. 



2878 


Henry J. Friendly, The Dartmouth College Case and the Public- 
Private Penumbra , pp. 14-18 (1968) (footnotes omitted): 

* * * * 

The view that the Fourteenth Amendment may have some 
such sweep stems from what has been called the "portentous 
decision" twenty years ago in Shelley v. Kraemer , or, more 
accurately, from attempts to supply a reasoned basis for it. The 
holding, that the equal protection clause of the Fourteenth 
Amendment prohibited a state court's allowing the beneficiary of 
a covenant restricting against the sale of large tracts of real 
property to Negroes to prevent the taking of possession by a 
Negro who had bought a lot from a willing white seller, does not 
now seem very "portentous"; indeed, today one can hardly imagine 
the case having been decided otherwise. Almost no one disagrees 
with the result of Shelley v. Kraemer ; yet despite the quantity 
and quality of scholarly writing, the attempt to extract a sati¬ 
sfying general principle for it has run into the gravest dif¬ 
ficulties and seems to lead inescapably to the great blue yonder. 

One point on which there is general agreement is that 
the opinion, by Chief Justice Vinson, gives little help. After 
characterizing the Civil Rights Cases as holding "that the action 
inhibited by the first section of the Fourteenth Amendment is 
only such action as may fairly be said to be that of the States" 
and that the Amendment "erects no shield against merely private 
conduct, however discriminatory or wrongful," and saying "that 
the restrictive agreements standing alone cannot be regarded as 
violative of any rights guaranteed" by the Amendment, he added 
that "here there was more." The "more" was "judicial enforcement 
by state courts of the restrictive terms of the agreements.” The 
discovery was followed by an extensive and convincing 
demonstration that "from the time of the adoption of the 
Fourteenth Amendment until the present, it has been the 
consistent ruling of this Court that the action of the States to 
which the Amendment has reference includes action of state courts 
and state judicial officials." What the demonstration 



2879 


unfortunately did not demonstrate was the only point at issue: 
namely, that the Court had ever so held with respect to action of 
a state court that simply enforced a private agreement which the 
opinion, perhaps in error, conceded to be valid. 

By all odds the most influential criticism of this 
fallacy is Professor Herbert Wechsler’s Holmes Lecture of 1959 at 
the Harvard Law School, which sparked a discussion that continues 
with unabated fury. While he propounded searching questions as 
to the implications of Shelley v. Kraemer in other areas, enough 
for our purposes can be asked about restrictive covenants 
themselves. We have learned that a state violates the Fourteenth 
Amendment if it awards damages to beneficiaries of a racially 
restrictive covenant against a covenanter who breaks it, although 
the author of the Shelley opinion disagreed. Suppose a 
prospective vendor sued under a declaratory judgment statute for 
a decree that he might sell or a purchaser sued for a declaration 
that he might buy free of a covenant restricting against sale to 
a particular minority group, and a state court declined to grant 
relief, saying it did not propose to give legal advice on this 
issue although it had done so on similar ones. Does anyone doubt 
that the Supreme Court would reverse, although here the state has 
simply abstained? Suppose an action to enforce such a covenant 
was brought in a federal court on the basis of diverse 
citizenship. Here there would have been no action by a state 
court, yet it would be a foolish prophet who would think the 
result would differ, or should. Indeed the companion case of 
Hurd v. Hodge reached a similar result as to a restrictive 
covenant in the District of Columbia. The Court’s explanation of 
Shelley v. Kraemer thus simply will not wash even in the area of 
restrictive covenants, let alone as to other problems that have 
arisen. The trouble was not simply the Missouri and Michigan 
courts' decrees; it was the Missouri and Michigan common law 
which made the covenants valid and enforceable. 

Professor Wechsler’s challenge speedily elicited an 
attempt at principled elucidation of Shelley by Professor, now 
Dean, Louis Poliak. His thesis was that the line that cannot be 



■ 2880 


crossed by the state "is that beyond which the state assists a 
private person in seeing to it that others behave in a fashion 
which the state could not itself have ordained." Shelley thus 
rested on the state's having allowed a third party to upset a 
consensual transaction between two others on a ground not 
permitted to the state itself- This principle neatly explained 
the failure of the Court to intervene in such cases as Rice v- 
Sioux City Memorial Park Cemetery and Black v. Cutter 
Laboratories on the basis that there the state had merely 
declined to invalidate provisions in contracts between the 
parties, although it could not constitutionally have made such 
contracts on its own. similarly his formulation supported the 
first denial of certiorari after the substitution of private 
trustees in the Girard College case, although state action would 
have existed if the trustees had wished to abandon Girard's 
restrictions and the Pennsylvania courts had forbidden. Yet this 
position led Dean Poliak to reject a well-known Massachusetts 
decision, Gordon v. Gordon , upholding a testator's direction for 
forfeiture of a legacy in the event of his son’s marriage outside 
the Jewish faith, unless "the state has power to inhibit — 
perhaps to prohibit altogether — miscegenation of Jews and 
others," which it rather obviously does not. I am not certain 
Dean Poliak was required to go so far; conceding that 
Massachusetts was engaging in state action, one could justify the 
decision on the lack of any public consequences sufficiently 
material to warrant disregard of the testator's desires. Despite 
the elegance of Dean Poliak's thesis and its initial appeal, it 
has generally been regarded as turning too largely on the 
accident of how a case arises and thus failing to supply a truly 
satisfying principle- 

Another notable attempt to fill the jurisprudential 
vacuum was Professor Louis Henkin's article three years later, 
" Shelley v. Kraemer : Notes for a Revised Opinion." He took a 
far more sweeping approach than Dean Poliak, expressing favor for 
a principle foreshadowed by a pre- Shelley decision reversing an 
Illinois injunction against peaceful picketing on the basis that 



2881 


the prohibited state action was not the court's decree but the 
Illinois common law that led to it. Correctly, in my view, this 
"puts the common law of a state generally on the same footing as 
its legislation, rejects distinction between the written law and 
the unwritten, and makes the state responsible for both." What 
is not clear to me is where Professor Henkin's approach falls 
short, as he thinks it does, of the extreme position that the 
state's maintenance of any rule of law as to private conduct, 
whether a rule of interference or a rule of noninterference, 
constitutes state action, save for noninterference in the narrow 
area where the state could not constitutionally interfere, and, 
if so, what the basis is for the short-fall. What concerns me 
more are suggestions in the article that seem to identify this 
narrow area where state inaction is not state action because the 
state could not constitutionally act with what is constitu¬ 
tionally permissible, at least as regards discrimination. I 
cannot believe this is so. Although the state may not be able to 
punish a householder who expels a Negro from a party in his home 
to which all white residents of the neighborhood have been 
invited, I doubt it is constitutionally required to dispatch the 
police to aid him in the effort. Yet it is surely free to send 
the police if it chooses and, if I read Professor Henkin aright, 
the fact that the state can constitutionally choose causes this 
not merely to be state action, which it clearly is, but uncon¬ 
stitutional action, which I think it is not — since any such 
view would place a premium on self-help. Again, the fact that 
Massachusetts could have refused to enforce the forfeiture in 
Gordon's will for marriage outside his faith does not make 
inevitable a conclusion that enforcement of the will was 
unconstitutional. 

If anyone thinks I imagine that by venturing to disagree 
with these respected scholars I have solved the puzzle of Shelley 
v. Kraemer , he has another think coming. Perhaps indeed there is 
no logical stopping place short of the extreme position that 
whenever a state has exercised an option to enforce or refuse to 
prevent individual action which would violate the Fourteenth 



2882 


Amendment if taken by the state itself, there is state action, 
although not necessarily unconstitutional state action. For the 
Supreme Court to affirm this would not require it to overrule the 
Civil Rights Cases ; these could be rested on the basis tor which, 
as indicated, there is support in Hr. Justice Bradley's opinion 
— that Congress can act to enforce the Fourteenth Amendment only 
when there is ground for thinking a state would violate it either 
by action or by inaction. 

I cannot held shuddering, however, at all the 
implications of this extreme position. It would mean mounting 
dockets for the Supreme Court and other courts, especially for 
lower federal courts in suits under the civil rights statutes. 
Many of these action would relate to petty grievances not worthy 
of judicial consideration; academic writers tend to concentrate 
on meritorious claims without sufficient regard for the judicial 
burden in sorting them out. Other actions would involve more 
important policies which, although of dubious wisdom, were not 
dubious enough to be unconstitutional, yet where a decision of 
lack of unconstitutionally might be taken as "legitimating" a 
practice that was far from being approved. Of equal concern are 
the temptations afforded by difficult cases to intrude on 
constitutional grounds into areas best left to the legislature, 
the difficulties of limiting such decisions to the facts that 
gave them birth, and the consequent increases in actual or 
potential federal-state collisions. The courts lack the time, 
the empirical knowledge, and the wisdom to handle every claim of 
unequal or arbitrary treatment by individuals enforced or not 
prevented by the states. Recognizing that the difference between 
a view allowing Fourteenth Amendment attack on any decision to 
enforce or not to enforce a rule of law but giving fairly wide 
latitude to the states in the area of nonenforcement and the 
position that some "significant state involvement" is a 
precondition to such attack is only "one of emphasis” which is 
"slight and subtle," Professor Lewis persuasively argues "that 
the differences in operation and effect of the analyses, in the 
acceptableness of the decisions reached through their use and in 



2883 


the responses of the various organs making up the federal 
totality to results of the two analyses, may be marked." However 
this may be, what is always vital to remember is that it is the 
state's conduct, whether action or inaction, not the private 
conduct, that gives rise to constitutional attack; it still 
cannot be doubted that the Fourteenth Amendment was designed to 
protect the citizen against government and not against other 
citizens. Decision of actual controversies thus is not helped 
overmuch by first making an exceedingly broad proclamation as to 
what constitutes state action and then limiting the vision to 
racial discrimination, and even as to that only with respect to 
"salient aspects of the public life" without defining what life 
is public or what aspects are salient, or by saying this is 
subject to "a prudent use ... of the resources of law to afford 
'protection’" without indicating what that may be. In the 
Supreme Court's recent opinion holding the refusal of a 
subdivider to sell a residential lot to a Negro to be unlawful, 
the placing of decision on the first section of the Civil Rights 
Act of 1866, which was considered to be within the power granted 
Congress by Section Two of the Thirteenth Amendment without 
regard to state action, avoided any need to reconsider that 
thorny subject. 


* * 



2884 


The Chairman. Thank you, Mr. Randolph. 

Ms. LaFontant. 

TESTIMONY OF JEWEL LaFONTANT 

Ms. LaFontant. Good afternoon, Mr. Chairman and members of 
the committee. 

Judge Bork has asked me to appear on his behalf. I have re¬ 
viewed most of the relevant court cases; I have read his writings; 
and I have watched and listened to his testimony as well as that of 
many witnesses who have appeared before you. There has been a 
thorough discussion of the cases in which he has been involved and 
an unending criticism of much of his writings. I must say that I 
don’t recognize the Judge Bork I know from so much of what has 
been said by his opponents here. 

You see, I knew him well. Let me tell you about the heart of the 
man. In 1973 after I left the United Nations, I came to the Office of 
the Solicitor General. I was a rarity, if not an oddity: there never 
had been a woman, black or white, Deputy Solicitor General of 
these United States. And my presence here is due to the high 
regard I have for Judge Bork, based upon my personal experiences 
with him. 

Judge Bork placed me in charge of the entire Civil Division 
where I reviewed hundreds and hundreds of cases that had been 
determined first in the U.S. district courts and then in the U.S. 
courts of appeal. I say I was an oddity—and it’s not just my assess¬ 
ment; it appeared that there was also the perception of the staff in 
the offices of the SG. You see, attempts were made to isolate me. 
On one occasion, a secretary who had warmed up to me after a few 
months after my arrival, she said: I am going to tell you some¬ 
thing, Mrs. LaFontant, that you are not going to like—the other 
deputies meet regularly, and you are not included. How do you 
know this, I asked. She continued: I was told to call the deputies in 
to a meeting and the names were called, and I said: “And Mrs. La¬ 
Fontant?” The response was: oh, no, just the men. The response 
could have been: oh, no, just the whites. 

I immediately reported this to Solicitor General Bork, and it is 
an understatement to say that he was appalled. And though he is 
usually a calm and even-tempered person, he exhibited strongly his 
dismay and sputtered his unhappiness about this attempt to ex¬ 
clude me and to discriminate against me. The very next day was 
the beginning of my attending so many briefings—I was bombarded 
with meetings—that I wondered to myself whether I had been wise 
in complaining in the first place. 

But those meetings were very important, not only because the 
current cases were discussed, the relevant law reviewed, but the 
cases for argument before the Supreme Court were assigned at 
those meetings, and those in charge of assigning have the pick of 
the cases to present to the various lawyers. 

By being kept out of these discussions, my education of course 
was being limited, to say the least, and I was not given the choice 
cases to argue. 

But Judge Bork handled this in his usual low key, quiet but de¬ 
termined and fair manner—no confrontation, no embarrassing ac- 



2885 


cusations—things just changed. He had seen to it that I was treat¬ 
ed the same as the others. 

And during my entire tenure there. Judge Bork exhibited com¬ 
plete fairness and openness. He was always open for debate—actu¬ 
ally enjoyed the give and take of debate. He believes, and has said: 
intellect and discussion matter, and can change the world. He 
doesn’t have a closed mind. 

Bob Bork’s devotion to women's rights was further exhibited in 
his support of the Federal Women’s Program of the entire Depart¬ 
ment of Justice. In fact, the Federal Women’s Program was found¬ 
ed in my quarters of the Solicitor General’s Office, and I became its 
first chair, which could not have happened without the blessing 
and encouragement of Judge Bork. 

The purpose of the Federal Women’s Program was the elimina¬ 
tion of sexism, to enlarge the recruitment and promotion of 
women. It seemed there was an invisible ceiling at about grade 12 
for women when I was here. Our group studied and tracked women 
and men from their entry into the Department and throughout 
their careers, and found that women with the same or similar cre¬ 
dentials as men could not rise above grade 12. We sensitized, 
through written and verbal contact, the department heads to the 
discrimination against women at the Department of Justice, and 
held what was called “women’s exposition” at the Justice Depart¬ 
ment each year for several days, and included all agencies of gov¬ 
ernment and even the surrounding business and civic community. 
We put in place programs to combat the sexism that was rampant. 
Our efforts played no small role in opening the doors of opportuni¬ 
ty for women and improving the status of women. We take some 
credit for increasing the number of female employees, as well as an 
improvement in their overall distribution to more responsible posi¬ 
tions. 

I do believe that Bob Bork, by putting the weight of his office 
behind this program, caused the department heads to sit up and 
take notice. 

All of my life I have been involved in civil rights organizations, 
having served for many years as secretary of the Chicago branch of 
the NAACP, on the board of directors of the American Civil Liber¬ 
ties Union and its legal redress committee, and as chairman of the 
Illinois Advisory Committee of the U.S. Civil Rights Commission, 
as well as being a commissioner of the Martin Luther King Holi¬ 
day Commission. I have no hesitancy in supporting Judge Bork’s 
nomination to the Supreme Court. 

Not only is he a supporter of equal treatment for women. I sin¬ 
cerely believe that he is devoid of racial prejudice, or else I would 
not be here. 

But what I like about him further is that he can be persuaded. 
In his 1963 New Republic article, he opposed the public accommo¬ 
dations provision of the proposed 1964 Civil Rights Act, but 10 
years afterwards, in 1973, while I was in the Solicitor General’s 
Office, he changed his mind. He admitted he was wrong, and he 
has been severely criticized for his change of heart. To me that is a 
sign of true intellect, that you can admit you made a mistake. Bork 
said: “I was on the wrong track, the civil rights statute has worked 



2886 


very well. Were it to be proposed today . . .”—and he was talking 
in 1973—“I would support it.” 

Judge Bork’s commitment to and great and unusual respect for 
precedent was made clear to me when he was Solicitor General. He 
preached the importance of the stability of the law. He stated at 
these hearings that he would respect precedent. I believe him. 

When he states he now accepts Brandenburg, I believe him. Re¬ 
cently I asked Judge Bork a question: Is a case that was decided by 
a 5-to-4 vote, such as Roe v. Wade, just as much a precedent as one 
that was determined by a 9-to-0 vote? His response was: you bet 
you. He is no ideologue, but an objective clearthinking jurist who, 
in spite of his difference with the rationale of Roe v. Wade, testified 
along with Archibald Cox against the pro-life bill, or the human 
life bill proposal that would have made abortion murder, as defin¬ 
ing life as beginning at conception. 

But no matter how well you know a person, in evaluating the ju¬ 
dicial competency and suitability of one who is being considered for 
appointment to the Supreme Court, there is no looking glass into 
which we can gaze and with accuracy and credibility determine or 
predict with certainty how an Associate Justice will perform, 
reason, decide, and vote in the abstract. The Justices, as I under¬ 
stand the situation, decide cases on the basis of the facts before 
them, the nuances of the circumstances, and the controlling prece¬ 
dent. 

Indeed, no attempt should be made to really obtain prior commit¬ 
ments as to how he will vote. It’s inappropriate to attempt to fetter 
the judicial freedom of a jurist by seeking or demanding to know 
how he will decide issues and cases in the future. 

I see that my time is up. I have submitted a paper. I’d like at 
this time to say thank you very much, and I am open to questions. 

[Statement follows:] 



2887 


REMARKS OF JEWEL S. IAF0T7EANT 
RE JUDGE ROBERT BOPK 

BEFORE TOE UNITED SSKIES GENATO JUDICIARY COWITTOE 
SEPTTOffiER 28, 1987 

Mr. Chairman, Mooters of the Ccmnittee, my name as Jewel lafontant. 

I am a senior partner in the Chicago based Law firm of Vedder, Price, 

Kaufman & Karmholz^with offices also in Hew York and Washington, D.C. 

Judge Bork has asked me to appear cn his behalf. I have reviewed most 
of the relevant court cases. Have read Judge Bork's writings and have 
watched and listened to his testimony as well as that of many witnesses 
wiio liave appeared before you. 

There has been a thorough discussicn of the cases in which he has been 
involved and an unending criticism of much of his writings. 

I must say that I do not recognize the Judge Bork I know frcm so much 
ot what has been said by his opponents. I kne*# him well. 

Let m 2 tell you about the heart of the man. 

In 1973 I was a rarity, if not an oddity, in the Solicitor General’s 
Office. You see, there never had beesi a weman, black or white. Deputy 
Solicitor General. My presence here is due to the high regard I have for 
Judge Bork based upon my personal experiences with him. Judge Bork gave 
m> the opportunity Lo represent our Government before the United States 
bupreme Court. He placed me in charge of the entire Civil Division where 
i reviewed hundreds *uid hundreds of cases that had lieen determined first in 
M jo U.S. District Courts and tlicn in the U.S. courts of appeal. J say I 
uis an oddity - not only my assessment - and it appeared that that was 
also the perception of the staff in the offices. You see, attempts were 
Utade to isolate me. On one occasion a secretary wtu had warmed up to me 
— a few months after my arrival — said, "I am going to tell you semethina, 
Mr 1 ,. Lafontant, that you are not going to like. The other deputies meet 
regularly and you are not included." "How do you know this", I asked. 

She continued, "I was lold to call the deputies into a meeting and the names 
Wi i o called and I said ’and Mrs. Lafcntant'." "Oh no, just the men" was 
til.- response. 1 i rimed Late I y reported this Lo Solicitor General Bork. 

11 is an understatement to say that he was appalled. And, though he is 
11 j .11 ly u calm and oven tempered person he exhibited strongly has dismay and 



2888 


sputtered his unhappiness about this attaipt to exclude me and to discriminate 
imst me. The very next day was the beginning of my attending so many 
bi icfings — T was Jxmibardcd with meetings — that I wondered to myself 
whether I had been wise in complaining in the first place. Those meetinqs 
were very important not only because the current cases were discussed; 
the relevant law reviewed but the cases for argument before the Suprene 
Court were assigned at those meetings and those in charge of assigning had 
the "pick'* of the cases to present to the various lawyers. By being kept 
cut of these discussions, my education was being limited — to say the 
least — and I was not given the choice cases to argue. Judae Bork handled 
this in his usual lev key, quiet, but determined and fair manner. 

No confrontation — no embarrassing accusations. Things just changed! 

He had seen to it that I was treated the same as the others. 

During my entire tenure there. Judge Bork exhibited ccmplete fairness 
and openness. He was always open for debate — actually en}oyed the qive 
and take of debate — he believes and has said '‘intellect and discussion 
nvitter and can change the world." He does not have a closed mind. 

Dob Bork's devotion to varan's rights was further exhibited in his 
support of the Federal Wooen's Program of the Department of Justice, 
m fact the Federal Wcmen’s Program was founded in my quarters of the 
£/> 1 ic 1 tor General's Office and I became its first Chair which could not 
hive happened without the blessing and encouragement of Judge Bork. 

The purpose of EWP was the elimination of sexism -to enlarge the 
recruitment and promotion of wanen. There was an invisible ceiling at about 
grade 12 for wooer. Our group studied and tracked wanen and men fran their 
entry into the Department and throughout their career — and found that 
wctirai with the same or similar credentials as men — could not rise above 
grade 12. We sensitized — through written and verbal, contact — the 
department heads to the discrimination against wemen at the Department of 
Justice and held what was called Women’s Expo at the Justice Department each 
ycur for several days — and included all agencies of government and even 
LUi surrounding business and civic ccmrnmity. We put in place programs to 
mnbat the sexism that was rampant. Our efforts played no small role in 
opening the doors of opportunity for women and improving the status of wanen. 
Vte take sore credit for increasing the numiier of female employees us well 
as an inprovenent in their overall distribution to more responsible 


positions. 



2889 


All of my adult 1 ife I have been active in civil rights organizations. 

!Living served for many years as Secretary to the Chicago Branch of the NAPiCP, 
on the Board of Directors of the American Civil liberties Onion and its 
legal Redress Cornuttee and as Chairman of the Illinois Advisory Camu.ttee 
of tile U.S. Civil Rights Ccjimission, and being a Coimssicner of the 
Martin Luther King Holiday Connussion, T liave no Ix'sitancy in supportmg 
Judge Bork's ncmination to the Suprane Court. 

Not only is he a supporter of equal treatment for women, 1 sincerely 
buUeve that he is devoid of racial prejudice. Further, what I like about 
him is tliat he can be persuaded. In his 1963 New Republic Article he 
opposed the Public Accomodations provisions of its proposed 1964 Civil 
Rights Pc t. Ten years after the New Republic Article, in 1973, while I was 
in the Solicitor General's Office, he changed hi:, mind. Be admitted he was 
wrong. He has been severely criticized for his change of heart. To me, 
that is a sign of true intellect — that you can admit you lave node a 
mistake. Bork said, "T was on the wrong track.” The Civil Rights statute 
has worked very welt — were it to be proposed today (1973) I would support 
li . 

Judge Bork's cornu tment to and great and in usual respect for 
j , cedent was made clear to me when he was Solicitor General. He preached 
it' importance of thj stability of the law. He stated at these hearings that 
h. would respect precedent. I believe him. tlhen he states he new accepts 
hi indenberg, I believe him. Recently, I asked Judge Bork a question, 

"u a case that was decided fcy a 5 to 4 vote (such as Roe v. VJade) just as 
much .i precedent as one that was determined by a 9-0 vote." His response was, 
" »i i lietcha!" 

He is no idaaloguo — but an objective, clear thinking jurist who in 
spite of his difference with the rationale of Roe Wade testified along 
'• di Archibald Cox .tgmnst the Bro-Life Bill or, "thnen Life Bill — 
t. ipiosal that WDuld have made abortion murder as defining life as 
1 j inning at concopnon." 

Jo matter hoi; uc II you I relieve you kjxjw a person, in evaluating the 
judicial competency and suitability of cne who is being considered for 
<- 1 | pointment to the Supreme Court, there is no looking glass into which 
ican gaze and with accuracy and credibility determine or predict 



2890 


with certainty hew an associate justice will perform, reason, decide and 
vote — in the abstract. Judges, as I understand the situation, decide 
cases on the basis of the facts before them, the nuances of the 
circumstances and the controlling precedent. 

Indeed, no attempt should be made to obtain prior carcnitments as to 
how lie will vote, or a fortioran, it is inappropriate to attenpt to 
fetter the judicial freedan of a jurist by seekinq or dananding to knew 
taw he will decide issues and cases in the future. 

There is i\ notable situation involving the great controversy and 
debates which arose during confrontation hearings of tl*e nomination of 
Mr. Justice Hugo Black to the Supreme Court in 1935. Before the hearings, 

M was widely published and disseminated that Hugo Black in early life, 
while an elected official in the political life of Alabama, had been a 
number of the Klu Klux Klan. When confronted with this allegation, he 
admitted indeed, he had been a member of the Klan. Justifiably, the 
Black Carmunity was seriously and appropriately concerned about a former 
m-jdxjr of the Klan becoming a member of the Supreme Court of the United 
Si ites. 

In spite of his prior Klan manbership, Mr. Justice Black was confirmed. 
Mr. Justice Black, the former Alabama Senator and former KKK member — 
once confirmed and sitting, became a champion of the rights and interests 
of tiie oppressed and down trodden and especially of the Black citizens 
of the United States. 

Justice Black's opinions were and are among the most liberating 
an bringing — by judicial emancipations — Blacks into the mainstream of 
the American society and releasing them from the shackles and servitudes 



2891 


of an unsavory history and period of segregation and discrimination. 

It is certainly within the realm of probability that, when confirmed, 
Mr. Justice Dork could very well eiulate the distinguished and 
liberating career of Hr. Justice Black. 

As a woman — and a black woman — I have no fear of entrusting my 
rights and my privileges to Robert Bork as an Associate Justice of the 
Supreme Court. I believe him. 

I ask this cornu.ttee and the Saiate, without reservation, to give 
this learned jurist, this legal scholar and philosopher, this craftsman 
of jurisprudence, this iran with heart, an opportunity to serve on the 
highest court . 

Thank you. 



2892 


Senator Humphrey. Ms. LaFontant, if you are nearly finished, 
why don’t you go ahead and complete your statement, if you wish? 

Ms. LaFontant. Well, there is a notable situation involving the 
great controversy and debates—I should say thank you very 
much—there is a notable situation involving the great controversy 
and debates which arose during confirmation hearings of the nomi¬ 
nation of Mr. Justice Hugo Black to the Supreme Court in 1935. 

Before the hearings, it was widely published and disseminated 
that Hugo Black in early life, while an elected official in the politi¬ 
cal life of Alabama, had been a member of the Ku Klux Klan. 
When confronted with this allegation, he admitted indeed he had 
been a member of the Klan. Justifiably, the black community, fair- 
minded people, were seriously and appropriately concerned about a 
former member of the Klan becoming a member of the Supreme 
Court of the United States. 

In spite of his prior Klan membership, he was confirmed. And 
Mr. Justice Black, the former Alabama Senator and former KKK 
member, once confirmed and sitting, became a champion of the 
rights and interests of the oppressed and downtrodden and espe¬ 
cially of the black citizens of the United States. 

Justice Black’s opinions were and are among the most liberating 
in bringing blacks into the mainstream of the American society 
and releasing them from the shackles and servitudes of an unsa¬ 
vory history and period of segregation and discrimination. 

It is certainly within the realm of probability that when con- 
finned, Mr. Justice Bork could very well emulate the distinguished 
and liberating career of Mr. Justice Black. 

As a woman and a black woman, I have no fear of entrusting my 
rights and my privileges to Robert Bork as an Associate Judge of 
the Supreme Court. I believe in him. 

I ask this committee and the Senate without reservation to give 
this learned jurist, this legal scholar and philosopher, this crafts¬ 
man of jurisprudence, this man with heart, an opportunity to serve 
on the highest Court. 

Thank you very much. 

Senator Specter. You have arrived at a time which may be less 
desirable than 10 o’clock at night; you have arrived over the lunch 
hour. And I just stepped out for a brief bite. It is perhaps an oppor¬ 
tunity for Senator Humphrey and myself to make a motion and to 
decide what the committee will do here in the absence- 

Senator Humphrey. I am delighted, whatever it is. 

Senator Specter [continuing]. In the absence of the chairman or 
anybody from the other side of the aisle. 

Well, Mr. Smith, it is your turn. 

TESTIMONY OF STUART SMITH 

Mr. Smith. Mr. Chairman and members of the committee, my 
name is Stuart A. Smith. I am a partner in the New York City law 
firm of Shea and Gould, and I have practiced there for 4 years. 
Before that, I served for 10 years as tax assistant to the Solicitor 
General, under three different Solicitors General, including both 
Republican and Democratic administrations, including the entire 
tenure of Robert Bork. 



2893 


During my time at the Department of Justice, I argued almost 50 
cases in the Supreme Court and more than 60 cases in the various 
circuit courts of appeals. 1 have worked with many fine lawyers 
over a very productive professional career, both in government and 
in private practice, but I can tell the committee that I have never 
encountered anyone who has been the equal of Bob Bork in terms 
of his intellectual integrity and absolute professionalism. 

As Mr. Randolph adverted to, the Solicitor Generalship is per¬ 
haps the best preparation a lawyer can have for service on our na¬ 
tion’s highest Court. He has been aptly called the 10th Justice, and 
he has enormous authority and independence to influence both the 
docket of the Court and how the Court decides cases, because the 
Court relies on the Office of the Solicitor General. 

Bob Bork presided over the Office of the Solicitor General during 
his time, 1973 through 1977, with an intellectual honesty that the 
Court deeply appreciated. This quality of intellectual honesty cou¬ 
pled with his profound respect for the rights of individuals con¬ 
vinces me that he would make an outstanding Justice. 

I would like to tell the committee about three instances in which 
I was personally involved, which I believe serve to illustrate the 
nature of his character and capacity. 

There are many occurrences in which the tax law and civil 
rights or civil liberties laws intersect. In these instances, which 
were within my special responsibility in the Solicitor General’s 
Office, Judge Bork consistently demonstrated his commitment that 
all persons subject to our tax system be treated with absolute fair¬ 
ness. 

One of those instances. Senator Humphrey has mentioned last 
week, but I think it deserves repetition. In 1976, a black man in 
Alabama had been convicted of various drug and criminal income 
tax charges. In his petition for Supreme Court review, the defend¬ 
ant claimed that the Government’s principal witness had perjured 
himself. I had been asked by the defendant’s lawyer to undertake 
an independent investigation of this matter, and I was happy to do 
it. It was something that Judge Bork encouraged, that the Govern¬ 
ment had to behave in an absolutely right-minded way in the con¬ 
duct of criminal prosecutions, including the tax prosecutions of 
which I was in charge. 

I directed that independent evaluation, and that, believe me, 
took a good deal of time. We had to delve into the records of the 
Drug Enforcement Administration, and it was not easy to extricate 
this information. Ultimately, we did, and I recommended to Judge 
Bork that we confess error and ask the Supreme Court to return 
that case to the court of appeals to consider whether the conviction 
should be reversed. 

Judge Bork unhesitatingly agreed with my recommendation. 
Now, in doing that, I want to make it perfectly clear that it was his 
responsibility to do that. Last week, I think the committee heard 
some testimony that in connection with various instances in which 
Judge Bork conducted himself with exemplary fairness, Mr. Cole¬ 
man, I think, told the committee, “Oh, that was so-and-so, or that 
was so-and-so; that was not Robert Bork.” That is, with all due re¬ 
spect, arrant nonsense. That is not the way the Solicitor General’s 
Office behaved. It is not the way any chain of command behaves. I 



2894 


made the recommendation, but it was Robert Bork who ultimately 
made the decision, for which he can take credit or possibly blame. 

He took this principled action, in my view, over the strong pro¬ 
test of the local U.S. attorney, who had inundated me and various 
other lawyers in the Department with all sorts of pressure to keep 
that conviction intact. And we did not do so because, as I said, we 
felt ourselves bound by a stricter standard of conduct, a standard of 
conduct that Judge Bork encouraged. He brought out the best of all 
of the lawyers in the Office. 

A lesser man could have yielded to institutional pressures, but 
that was not the course Robert Bork could have followed. 

Sometimes, the actions of the Solicitor General in declining to 
proceed with a case likewise illustrate his compassion and respect 
for individual rights and civil liberties. These actions are unherald¬ 
ed and are only known to those lawyers in the Office who are close 
to the particular case. I would like to describe such a case to the 
committee. 

The Chairman. Your time is up, sir, so if you could summarize, 
we would appreciate it. 

Mr. Smith. Well, I think it is important, and I will be as brief as 
I can. 

In 1974- 

The Chairman. Very brief. 

Mr. Smith [continuing]. A Quaker was convicted of filing a false 
W-4 Form, claiming an excessive number of exemptions, for the 
purpose of making an anti-war protest. The court of appeals re¬ 
versed his conviction, and it fell to us to figure out whether to 
appeal the case to the Supreme Court. There were conflicts in the 
lower courts, and there was a respectable position to take that case 
forward. 

I recommended again to the Solicitor General that we not take 
the case forward, and he agreed with my recommendation. He un¬ 
derstood that the defendant’s behavior represented something akin 
to what I would call sincerely-motivated conduct which is deeply 
rooted in our culture and history. 

Again, here is a situation in which Judge Bork was not dealing 
in legal abstractions, but rather with wisdom and compassion in 
connection with the facts of a particular case. 

I think that these instances, plus a third one which I have men¬ 
tioned in my prepared paper which is going to be part of the 
record, indicate to me that Judge Bork is a person open to persua¬ 
sion; he is open to argument. In my view there is no doubt, as 
someone who has studied the process of Supreme Court litigation 
and who has been very close to this man over 4 years, that he 
would grace the work of our nation’s highest tribunal, and I urge 
his speedy confirmation. 

The Chairman. Thank you, Mr. Smith, for abbreviating your 
statement, and your entire statement will be placed in the record 
as if read. 

[Statement of Mr. Stuart Smith follows:] 



2895 


STATEMENT OF STUART A. SMITH 

Mr. Chairman and Members of the Committee: 

My name is Stuart Smith. I am a partner in the Hew 
York City law firm of Shea 6 Gould, where I have practiced for 
the last four years. Before that, X was the Tax Assistant to 
the Solicitor General. I served for ten years under three 
different Solicitors General, during both Democratic and 
Republic Administrations, including the entire tenure of 
Robert Bork. 

During my time at the Department of Justice, I 
argued more than 50 cases in the United States Supreme Court 
and at least another 60 in the courts of appeals. I have 
worked with many fine lawyers, both in government and private 
practice, but I have never encountered anyone who has been the 
equal of Bob Bork, in terms of his intellectual integrity and 
absolute professionalism. 

The Solicitor Generalship is perhaps the best prepa¬ 
ration a lawyer can have for service on the Supreme Court. A 
person's conduct in that important post is a reliable indica¬ 
tion as to how he would perform on the Supreme Court. Bob 
Bork presided over the Office of the Solicitor General with an 
intellectual honesty that the Court deeply appreciated. This 
quality of intellectual honesty, coupled with his profound 
respect for precedent and the rights of individuals, convinces 
me that he would make an outstanding Justice. 

Three instances, in which I was personally involved, 
will serve to illustrate the nature of his character and 
capacity. 

There are occurrences in which the tax law and civil 
rights laws intersect. In these instances, which were within 
my special responsibility. Judge Bork consistently demon¬ 
strated his commitment that all persons subject to our tax 
system be treated with absolute fairness. In 1976, a black 
man had been convicted in a southern state of various drug and 
criminal income tax charges. In his petition for Supreme 
Court review, the defendant claimed that the government's 




2896 


principal witness had committed perjury, As the lawyer re¬ 
sponsible for presenting the government's tax cases to the 
Supreme Court, I directed that an independent evaluation be 
made, and concluded that the defendant's claim was factually 
correct. Accordingly, I recommended to Judge Bork that the 
government confess error and ask the Supreme Court to return 
the case to the court of appeals to consider whether the 
conviction should be reversed. 

Judge Bork unhesitatingly agreed with my recommenda¬ 
tion. He took this principled action despite the strong 
protests of the local United States Attorney and other lawyers 
in the Department of Justice. But Judge Bork understood that 
the government was bound by a stricter standard of conduct. 

As ha properly saw the matter, the government's criminal 
prosecutions had to be conducted with the utmost fairness and 
the government owed a special obligation to the Supreme Court 
to admit when the process had been defective, whatever the 
costs might be. A lesser man might have yielded to the insti¬ 
tutional pressures and deprived a black man of his fundamental 
right to a fair trial in order to protect the reputation of 
another federal officer. For Robert Bork, that was an impos¬ 
sible course to follow. 

Sometimes the actions of a Solicitor General in 
declining to proceed with a case likewise illustrate his 
compassion and respect for individual rights and civil liber¬ 
ties. These actions are unheralded and are only known to 
those lawysrs in the office who are close to the particular 
matter. 

I would like to describe one such case to the Com¬ 
mittee. In 1974, a federal district court convicted a Quaker 
teacher of filing a false tax withholding form claiming an 
excessive number of dependents. The teacher had filed the 
false form because of his opposition to defense spending by 
the government. During the trial, the defendant refused to 
stand up when the trial judge entered the courtroom, and the 
judge had also found him guilty of contempt. 



2897 


In reviewing the convictions for both the tax of¬ 
fense and.the contempt actions, the court of appeals issued an 
opinion that conflicted on both issues with the decision of 
another circuit. Because one of the principal functions of 
the Supreme Court is to resolve conflicts between circuits, 
there was considerable pressure within the government for 
taxing the case to the Supreme Court. Indeed, the local 
United States Attorney made a special trip to Washington to 
urge us to appeal to the Supreme Court. 

After careful consideration. Judge BorX agreed with 
my recommendation not to pursue the case any further. As a 
purely analytical matter, we both regarded the reasoning of 
the court of appeals to be vulnerable. Hence, we beliaved 
that if we took the case to the Supreme Court, there was a 
strong likelihood that we, in fact, would have prevailed and 
gotten the convictions reinstated. But Judge Bork was per¬ 
suaded by my argument that the case was an aberration that 
would not threaten the government's criminal tax prosecutions. 
Rather, he recognized the human aspects of the case -- in 
which a person would have been sentenced to a substantial 
prison term for sincerely-motivated conduct that has deep 
roots in our history and culture. Thus Judge Bork concluded 
that it would have been inappropriate, indeed, inhumane to 
press on with such a case. 

Finally, a third episode illustrates Bob Bork's 
absolute intellectual integrity and commitment to the process 
of honest and forthright debate — a characteristic that the 
committee observed throughout last week's proceedings. In 
1974, a suit was brought by an anti-war group to challenge the 
practice whereby members of Congress served in the armed 
forces reserves. Ths Solicitor General successfully opposed 
the suit on various grounds, including "justiciability" — a 
doctrine that permits the courts to dismiss cases that are not 
suitable for judicial resolution. Here, the claim of justi¬ 
ciability relied upon the constitutional doctrine of separa¬ 
tion of powers — that each house of Congress is to regulate 
the practices of its members, rather than having those prac- 



2898 


tices regulated by a coordinate branch of government, such as 
the courts. 

When Bork advanced the Government's justiciability 
point before the Court, Justice William 0. Douglas, who rarely 
spoke, challenged the argument. He asked whether, in the 
government's view, a suit to recover back pay by a member of 
Congress who was dismissed from the reserves would also be 
nonjusticiable given the fact that suits for back pay are 
routinely handled by the federal courts. 

Before Bork could answer, another Justice observed 
that there was no evidence that a back pay claim had been 
filed in this particular case. The Solicitor General agreed 
but rejected this easy way out of what was a difficult ques¬ 
tion. He went on to state that Justice Douglas's question 
"properly tests the limits of our theory.” He then answered 
the question. 

I no longer recall the substance of the answer, but 
I do recall the nature of the process: two powerful minds 
engaging in a demanding exchange in which each rejected a 
simple solution and acknowledged and responded to an opposing 
point of view with unfailing candor and courtesy. A man less 
concerned with ths pursuit of the truth, less committed to his 
obligation to help the Court reach the legally correct deci¬ 
sion, and more concerned — as sometimes lawyers are — simply 
with winning a case, would have avoided such a question. 

It is fortunate when a person of Judge Bork's proven 
ability comes to national prominence. It is even more fortu¬ 
nate when a person of Judge Bork's professionalism does — a 
professionalism that guides him always, when dealing with the 
powerful and the powerless, to act with the utmost honesty and 
responsibility. Judge Bork would enhance, indeed grace, the 
important work of our nation's highest tribunal. I urge this 
Committee, and the Senate, to act speedily to confirm his 
nomination. 



2899 


The Chairman. Senator Specter. 

Senator Specter. Thank you very much, Mr. Chairman. 

This panel has a very strong Pennsylvania representation—our 
former Governor and a member of Pepper, Hamilton & Sheetz. 

Let me start with you, Governor Thornburgh. You served with 
Judge Bork, as your written testimony shows—and I am sorry that 
I missed the testimony earlier, but I just stepped out for a brief 
bite over the lunch hour—did any of your experiences with Judge 
Bork give you any insights on the civil rights issue? I know how 
deeply committed you are on that subject, and I would be interest¬ 
ed to know, and I think my colleagues would be, too, as to what 
you gleaned by way of a sense of Judge Bork’s attitude on the civil 
rights issue. 

Mr. Thornburgh. This was a very unique time for the Depart¬ 
ment of Justice, Senator Specter, because of the fact that when At¬ 
torney General Levi took office, he make it a prime priority to re¬ 
store the effectiveness of the Department of Justice as a Depart¬ 
ment of Justice. A lot of our time during my tenure there was 
spent on reexamining some of the violations of civil rights and civil 
liberties that were alleged to have taken place during the Water¬ 
gate era and previous thereto in terms of whether federal criminal 
prosecutions should be brought and could be sustained. 

In the Department during that period of time, a working group 
consisting of the Attorney General, Edward Levi, the Deputy Attor¬ 
ney General, Harold Tyler, now Supreme Court Justice Scalia, 
Judge Bork, the Solicitor General, and myself as head of the Crimi¬ 
nal Division, spent a considerable amount of time looking at facts 
that had been developed by the Rockefeller commission and during 
the hearings of the Church committee in this body, and at some of 
the matters that had been disclosed respecting break-ins, mail 
openings, the Co-Intel-Pro operation, and all of the aftermath of 
that unhappy period. 

During that 2-year interval in which I served as head of the 
Criminal Division, we were in frequent contact with regard to our 
concerns about constitutional rights being observed and the civil 
rights and civil liberties of people, including unpopular groups that 
were the target of many of these particular operations. And there 
was a mutual concern that never again should these types of activi¬ 
ties be countenanced by our Government. And out of that came 
recommendations in coordination with then FBI Director Clarence 
Kelly for changes in FBI procedures, and out of that came a 
number of changes in other intelligence and criminal prosecution 
procedures designed to ensure those constitutional rights. 

During that period of time, I observed Judge Bork to be a strong 
believer in civil rights and civil liberties, expressing great concern 
from a largely academic point of view in terms of his experience, 
displaying a firm grasp of the constitutional principles involved in 
the very difficult sometimes cases of first impression that we were 
looking at, and a genuine, heartfelt concern on a personal basis in 
addition to his academic expertise that these types of activities not 
be given the imprimatur of Government thereafter. 

I think that there clearly is not only the intellectual capacity, 
which I believe the Judge has displayed throughout his career, but 
the sense of feeling with regard to the personal impact of the con¬ 


es- 374 0-89-7 



2900 


stitutional guarantees that made him a most worthwhile addition 
to this group that was working on these highly complex and very 
important matters. 

Senator Specter. Thank you very much, Governor. 

Ms. LaFontant, let me direct my next question to you. I note that 
your statement recounts Judge Bork’s concern about your status as 
a woman in the Department. And I notice that you refer to your 
years as Secretary of the Chicago branch of the NAACP and the 
board of directors of the American Civil Liberties Union. 

Ms. LaFontant. That should also be the Illinois division of the 
American Civil Liberties Union. 

Senator Specter. It will stand as amended—and a number of 
other qualifications. And the question I have for you relates to 
Judge Bork’s attitude on the issue of minorities and the Public Ac¬ 
commodations Act, which has been the subject of considerable dis¬ 
cussion here, and the opposition that he had early on, his New Re¬ 
public article of 1963. And I would be interested in your view of 
Judge Bork’s sensitivities to the issue of blacks, public accommoda¬ 
tions, women. It is probably going to exceed my tiipe, but I think 
the chairman will allow you to answer the question. 

Ms. LaFontant. Thank you. I think the sixties and seventies 
changed America, especially in the civil rights area. The article 
written by Judge Bork was in 1963. America has changed since 
then, people have changed, and I believe Judge Bork definitely has 
changed. After he wrote that article in 1973, he said, “I made a 
mistake. I was on the wrong track.” 

Senator Specter. Did he say that to you? 

Ms. LaFontant. No. I am quoting from a written statement that 
he made. But I would say since then he has said he made the mis¬ 
take, definitely, yes. 

Senator Specter. Well, I am very much interested in your testi¬ 
mony, and I do not wish to interrupt you and prolong it, but I had 
thought he might have said something to you personally, or some 
insights you gleaned personally, which might provide an additional 
dimension of help to the committee. That is why I had interrupted 
you. 

Ms. LaFontant. Certainly. Judge Bork has said to me he made a 
mistake, and that he was on the wrong track. And even though I 
would say personally that I was on the right track long before 
Judge Bork got on the right track, I do not hold it against him. All 
my life, I have been involved in the civil liberties area, civil rights 
area, have argued cases and been active with every organization 
you can imagine. I just threw out a few of them here. You might 
hold it against me if I throw out a few more. 

So I was on the right track because I had a heritage that has 
sensitized me, not only because I am black and female, but I had a 
father and a grandfather who were lawyers and extremely active 
in the civil rights movement. My father was a great labor lawyer, 
representing A. Phillip Randolph in the founding of the Brother¬ 
hood of Sleeping Car Porters Union. 

So I would say since childhood I have been sensitized, I have 
known the problems, and I was on the right track. Judge Bork was 
not on the right track in 1963, but he recanted, he changed, and in 
1973, he came out and said it in writing. I talked with him just last 



2901 


month because, when he asked me to come here and testify in his 
behalf, I flew to Washington to talk with him about some issues 
that were of concern to me. He reiterated his belief in civil rights, 
equality for women as well as blacks. And I am sold on the fact 
that he is completely devoid of racial prejudice. He is not preju¬ 
diced against women. I am convinced of it. 

I heard his testimony here, and it is like in a jury trial. You look 
at the witness, and you assess him from the way he appears. So 
that has to be left with you—how did he appear to you. To me, he 
is an honest, fine man who would not tell me these things if he did 
not sincerely believe them. 

I even asked him a question about affirmative action when I 
came to visit with him. And his position is that affirmative action 
is a good thing; it has been good as a remedy, to remedy the 
wrongs. And he is for it until the imbalance is cured. Now, some 
people might say, well, that may be forever; but he said he is for 
affirmative action as a remedy until the imbalance of this discrimi¬ 
nation is cured. 

Senator Specter. Thank you very much, Ms. LaFontant. 

Thank you all, and thank you, Mr. Chairman. 

The Chairman. Thank you. 

Senator Humphrey. 

Senator Humphrey. Ms. LaFontant, you cited your family histo¬ 
ry; your grandfather and your father both were involved in civil 
rights struggles. Tell us about some of these other organizations in 
which you have served. What are some of the things you have done 
in this area, in addition to serving as Deputy Solicitor General? 

Ms. LaFontant. Let me say at this point that I am director of 
the Southern Christian Leadership Conference. 

Senator Humphrey. You are a director? 

Ms. LaFontant. Yes. Of course, I’ve been active with the Black 
Bar, National Bar Association which was founded by my father 
with three other people during a time that blacks could not join 
the American Bar Association. I’ve kept up my activity in that 
kind of setting also. 

Then also I’ve worked very hard in the majority community of 
law, of civic affairs, and I’m sure you don’t want to have a whole 
list of all the civic affairs. I trying to get them together in my own 
mind. 

Senator Humphrey. I would if I had unlimited time, but may I 
ask, Mr. Chairman, that Ms. LaFontant be offered the opportunity 
to provide and be directed, in fact, to provide us a more comprehen¬ 
sive list of her affiliations and activities and achievements in this 
area? 

Ms. LaFontant. Yes, I could do that at the end of this testimo¬ 
ny- 

Senator Humphrey. Happy to have you. 

[Information follows:] 



2902 


JEWEL S. LAFONTANT 


Residence - 180 Ea9t Pearson 115 South LaSalle Street 

Chicago, IL 60611 Suite 3000 

(312) 280-9488 Chicago, IL 60603 

(312) 781-2383 

EDUCATION ; Oberlin College, Oberlin, Ohio, Bachelor of Arts 

Degree in Political Science - 1943; 

University of Chicago, Chicago, Illinois, Doctor 
of Law Degree - 1946 

PRESENT 
AFFILIATIONS & 

INTERESTS _ 

Senior Partner Vedder, Price, Kaufman 6 Kammholz 


Fellow 


Commissioner 


Commissioner 


Commissioner 


International Academy of Trial 
Lawyers 

Blue Ribbon Commission on the 
Administration of Justice in Cook 
County 

The Martin Luther King, Jr. 
Federal Holiday Commission 

Chicago Tourism Council 


Director 


Ariel Capital Management Company 


Member 


•President's Commission on 
Executive Exchange 


Member 


Member 


Visiting Committee to the Center 
for Far Eastern Studies - 
University of Chicago 

•Board of Governors of the Ronald 
Reagan Presidential Foundation 


Member 


The National Steering Committee 
of the Fund for America's Future 


Board of Overseers 


Hoover Institution 


CLUBS 


Commercial Club; Economic Club - Director; Law Club - Director 


Presidential Appointments 



2903 


AUGUST 1987 


PRESENT 

AFFILIATIONS & 

INTERESTS CONT.: 

COMMERCIAL, INDUSTRIAL. ETC. 


Director 

Director 

Director 

Director 

Director 

Director 

Director 


The Equitable Holding Corporation 
Equitable Life Assurance Society 
of the United States 
Revlon Group 
Revlon, Inc. 

Mobil Corporation 

Ariel Capital Management, Inc. 

TBG Broadcasting, Inc. 


SOCIETIES, ORGANIZATIONS, ETC, 


Fellow 

Member 

Member 

Member 

Member 

Director 

Trustee 

Member 

Director 

Director 

Director 


American Bar Foundation 
Chicago Bar Association 
Cook County Bar Association 
National Bar Association 
Women's Bar Association of 
Illinois 

Council on Foreign Relations 
Howard University 
The Chicago Committee 
Illinois Humane Society 
Chamber of Commerce of the United 
States of America 
The Protestant Foundation of 
Greater Chicago 


PREVIOUS PROFESSIONAL 
POSITIONS & AFFILIATIONS ; 

Former President of the Law Firm of Lafontant, Wilkins, 
Jones & Ware, P.C. 

•Deputy Solicitor General of the United States from 
February, 1973 to June, 1975. Represented the United 
States Government in preparing and arguing its cases 
before the U.S, Supreme Court. In addition, in more 
than 5,000 matters recommended either appeal or no 
appeal from decisions in the U.S. District Courts and 
the U.S. Court of Appeals. As a generalist, from 
February, 1973 through September, 1973, prepared 
briefs, petitions for certiorari and recommendations in 
all types of cases, including anti-trust matters. From 
September, 1973 until June, 1975, as a specialist in 
civil law and deportation cases, reviewed ail briefs 


•Presidential Appointments 


2 



2904 


AUGUST 1987 


PREVIOUS PROFESSIONAL 
POSITIONS & AFFILIATIONS CONT.; 


and recommendations prepared in those areas of the law. 
Argued criminal and civil cases in the U.S. Supreme 
Court. 

•United States Representative to the United Nations 
September, 1972 through December, 1972 with Vice 
President George Bush. 

•Chairman - Illinois Advisory Committee to the U.S. 

Civil Rights Commission. 

Trustee - Tuskegee Institute 
Trustee - Lake Forest College 
Trustee - Lincoln Academy of Illinois 
Trustee - Oberlin College 

•Member of President’s Council on Minority Business 
Enterprise. 

•Vice Chairman - U.S. Advisory Commission on 
International, Educational and Cultural Affairs. 

Board of Editors - American Bar Journal 

Vice President - United Cerebral Palsy of Greater 
Chicago 

Member - Peace Corps 25th Anniversary for the 
Foundation Board 

•Commissioner - National Council on Educational Research 

•Commissioner - Executive Committee of the President's 
Private Sector Survey on Cost Control 

Board of Managers of Chicago Bar Association - rated 
well qualified in 1974 for Judge of the U.S. Court of 
Appeals by the Chicago Bar Association. 

Assistant U.S. Attorney for Northern District of 
Illinois - May, 1955 through May, 1958. Trial Attorney 
with Legal Aid Bureau of United Charities of Chicago- 
1947 through 1953. 

Legal Advisor - Inheritance Tax Division - State 
Treasurer - 1962 through 1966. 

Secretary - National Bar Association - 1973 rated 
exceptionally well qualified for Judge of U.S. Court of 
Appeals. 


•Presidential Appointments 


3 



2905 


AUGUST 1987 


PREVIOUS PROFESSIONAL 
POSITIONS S AFFILIATIONS CONT■ 

Village Attorney for Village of Robbins and East 
Chicago Heights, Illinois. 

Board of Directors - Public Television Station WTTW- 
Channel 11. 


Director 
Director 
Director 
Director 
Director 
Director 
Director 

Director 

Director 

Director 


Jewel Companies, Inc. 

The Kanes Corporation 
The Bendix Corporation 
Harte-Hanks Communication, Inc. 

Foote, Cone & Belding Communications, Inc. 
Continental Illinois Corporation 
Continental Illinois National Bank s Trust 
Company of Chicago 
Trans World Airlines 
Pantry Pride, Inc. 

Transworld Corporation 


Active in civic. Republican and professional organizations. 
Recipient of numerous awards and honorary doctorates, some of 
which ares 


Howard University - Doctor of Humane Letters 
Cedar Crest College - Doctor of Laws 
Providence College - Doctor of Humanitarian Service 
Eastern Michigan University - Doctor of Laws 
Heidelberg College - Doctor of Laws 
Lake Forest College - Doctor of Laws 

Governor's State University - Doctor of Humane Letters 
Marymount Manhattan College - Doctor of Laws 
Oberlin College - Doctor of Laws 
Governor State University - Doctor of Laws 
The Chicago Medical School - University of Health 
Sciences - Doctor of Laws 
Loyola University of Chicago - Doctor of Laws 
University of Chicago - Citation for Public Service 


Howard B. Shepard Award - Civil Rights 

Outstanding Leaders Award - Protestant Foundation 
Little Flowers Seminary Society 
Service Award - Black Affairs Committee - Drug 
Enforcement Administration U.S. Department of 
Justice 

oic Corporation Communication - Humanitarian Award 
Candace Award - Distinguished Service - National 
Coalition of 100 Black Women 


4 



2906 


AUGUST 1987 


Selected as one of America's Top 100 Black Business & 
Professional Women by Dollars & Sense Magazine 
(August 1985) 

Adlai A. Stevenson II Award for service and support of 
the United Nations 

PAR EXCELLENCE Service Award - People United to Save 
Humanity (PUSH) 

Honoree at the 2nd Annual “Tribute to Chicago Women" 
dinner sponsored by the Midwest Women's Center 

Selected as one of the World's Outstanding 
International Business S Professional Women by 
Dollars & Sense Magazine (June 1987) 

The National Coalition of 100 Black Women established a 
scholarship in JSL's name at Smith College - 1987. 


Husband, father and grandfather, now deceased, of Jewel S. 
Lafontant were all attorneys and she is the mother of a 29 year 
old son, John W. Rogers, Jr., a graduate in Economics from 
Princeton University and President and CEO of Ariel Capital 
Management, Inc. of Chicago. 


5 



2907 


Senator Humphrey. I’ve heard, only hearsay, that you were 
under some pressure not to appear and testify on behalf of Robert 
Bork, is that correct? 

Ms. LaFontant. I don’t know that I like the word “pressure.” 
Let’s say on the Hill we call it lobbying, don’t we. 

Senator Humphrey. You were lobbied- 

Ms. LaFontant. Yes. 

Senator Humphrey [continuing]. By some mainline minority 
groups, is that it? Or do you care to say? Individuals or groups? 

Ms. LaFontant. Primarily individuals representing various 
groups, yes. 

Senator Humphrey. You know these nuances. You mentioned 
the importance of looking the members of the jury in the eye and 
the witnesses in the eye, and so on. Certainly we have had an op¬ 
portunity to do that, and a lot comes out in the way of nuance. 

So can you give us a little more detail in the way of nuance 
about the event that you described when you went to Robert Bork 
while he was Solicitor General and complained that all of the men 
deputies were being invited to important meetings but you were 
being excluded and that furthermore because you were being ex¬ 
cluded you were missing out on the details of the Department’s 
work and were not being offered an opportunity to argue some of 
the important cases? 

Can you give us a little bit more about that? You went and saw 
Robert Bork face to face or was it a phone call or a letter? How did 
it work? 

Ms. LaFontant. No. I went right in to see him. He was that 
kind of boss, so to speak, that he didn't stand back on ceremony. 
You didn't have to call and make an appointment. You go into his 
office, and if the secretary said he was in, you asked to see him, 
and he let you me see him immediately. 

At that point, I did not know how important it was that I was 
not at some meetings since this was my first affair. I just know 
that I rebel against being left out of anything where I am supposed 
to be, and I don’t carry a chip on my shoulder, but I was aware of 
the fact that there had never been a black at the Deputy Solicitor 
General’s level. 

We had had a black Solicitor General which was Thurgood Mar¬ 
shall, but there had never been a woman, black or white, and the 
way I was treated when I first went there—I was aware of the fact 
that I was being ignored because I had been ignored before. 

But it was so important to me to have the opportunity to argue 
our government’s cases in the Supreme Court that I won't say I ad¬ 
justed, but I tried to put it behind me, the fact that I was being 
ignored. 

But when I was told that I was being isolated and kept out of 
these meetings and I went to Bob Bork, I really did not know the 
importance of it. I just knew that this was something that was hap¬ 
pening because of my color or because of my sex. 

He knew what was happening at that time, and that’s why I 
think he was so upset because he had just come onboard himself. I 
came in in February 1973, but Bob Bork did not come until about 
May. 

Senator Humphrey. Yes. 



2908 


Ms. LaFontant. So he couldn’t believe it. He said, “Are you 
sure?” And I told him what I had heard and he took care of it right 
away. No nuances except he is a very straightforward guy. He saw 
an injustice and decided to correct it. 

When we started our Federal Women’s Program, he was behind 
it 110 percent, and actually when we would have our activities, 
what I call women’s expo, Judge Bork actually participated in the 
program. He lent the weight of his office to this endeavor and we 
were very grateful for it. 

Senator Humphrey. Well, even though in the case of rectifying 
the wrong involving discrimination against you with respect to not 
being invited to the meetings, even though he was brand new in 
the job, just getting his feet on the ground, one would think he 
wasted no time in righting that injustice. 

Ms. LaFontant. That is right. 

Senator Humphrey. Well, an old Chinese proverb says—I’m 
really making this up—but an old Chinese proverb says that ac¬ 
tions speak louder than old articles. 

Ms. LaFontant. And a late convert is sometimes the best. 

The Chairman. Thank you very much. Any questions from my 
colleague from Alabama? 

Senator Heflin. I will pass. 

The Chairman. Senator Leahy. 

Senator Leahy. I will pass. 

The Chairman. I want to thank you all very much for your 
being here. Again, thank you for allowing us to take one of the wit¬ 
nesses out of order. 

Mr. Randolph. Mr. Chairman, I have submitted a written state¬ 
ment. I assume that will be made part of the record. 

The Chairman. Yes. All written statements will be placed in the 
record in their entirety. 

Thank you. 

Our next panel is composed of some very distinguished profes¬ 
sors. If they would come forward as they are called. Paul Bator is a 
professor of law at the University of Chicago Law School. Henry 
Monaghan is a professor of law at the Columbia Law School. Lil¬ 
lian Riemer BeVier is a professor of law at the University of Vir¬ 
ginia. Leo Levin is a professor of law at the University of Pennsyl¬ 
vania Law School. Dallin H. Oaks is dean of the Brigham Young 
University School of Law. 

They are all on their way. While they are on their way down, I 
should announce that the next panel will be made up of Howard 
Krane, Kenneth Bialkin and Read Carlock. They will be the panel 
to follow this panel. 

We will recess in place until the witnesses actually walk in the 
room. 

[Short recess.] 

The Chairman. Will you all four stand and be sworn while we 
are waiting for Mr. Oaks so that we can move forward. 

Do you swear that the testimony you are about to give is the 
whole truth and nothing but the truth so help you God? 

Mr. Bator. I do. 

Mr. Monaghan. I do. 

Mr. BeVier. I do. 



2909 


Mr. Levin. I do. 

The Chairman. Let us begin, I guess, with you, Professor Bator. 
And we have a 5-minute rule, and if we could keep to it, we would 
appreciate it. And we’ll start from you and move toward your left. 
Welcome. 



TESTIMONY OF ACADEMIC PANEL INCLUDING PAUL BATOR, 

HENRY MONAGHAN, LILLIAN RIEMER BeVIER, LEO LEVIN, AND 

DALLIN H. OAKS 

Mr. Bator. Thank you, Mr. Chairman. 

My name is Paul Bator. I am John Wilson professor of law at the 
University of Chicago. For 25 years, I was a law professor at Har¬ 
vard, and in 1983 and 1984, I was Deputy Solicitor General and 
counsel to the Solicitor General of the United States. 

I have been a student of the jurisdiction and the work of the Su¬ 
preme Court for my whole professional life. I have known Judge 
Bork for many years. I am generally familiar with his scholarly 
and his judicial work. 

I will be very brief. I think virtually everything that can be said 
about this has been said already. 

My own view, Mr. Chairman, is that the country will be better 
off with a Robert Bork on the Supreme Court than without him be¬ 
cause he is a person of surpassing intellectual distinction, because 
of his outstanding integrity and intellectual honesty, and because 
of his commitment to the rule of law. 

In terms of qualifications, the Bork nominations seems to me to 
be one of the five or six most distinguished of the century. We have 
had many mediocre Justices in this century. To reject a nominee of 
outstanding distinction would be to miss an important opportunity. 

I’d like to say one special word about Judge Bork. It seems to me 
important to note that in each of the various roles and contexts 
where he has operated, he has served with great distinction in 
terms of the requirements of the particular role and institution. 

When he was a professor, he really did what professors are sup¬ 
posed to do. He was controversial, he was provocative, he was cre¬ 
ative. I think sometimes he was wrong headed, but he was always 
illuminating and always interesting. 

As Solicitor General, Judge Bork performed in the very highest 
traditions of that office. And I hope members of the committee 
have carefully read the really powerful and moving letter that was 
written to the committee by the lawyers, the very distinguished 
lawyers who served with Judge Bork in that office. A letter which 
speaks of Judge Bork’s professionalism, of his tolerance and open¬ 
ness, of his dedication to the judicial process and reasoned decision¬ 
making, and his commitment to the rule of law. 

And, finally, as a judge, Judge Bork has served with great dis¬ 
tinction and with completely appropriate institutional commit¬ 
ments and traditions. And it does seem to me very unjust to 
assume or to state that when Judge Bork goes on the Supreme 
Court, he will suddenly go haywire, and start operating as a radical 
eccentric, oblivious to the traditions and institutional constraints of 
that office. There is no evidence for that proposition. 

Mr. Chairman, my own view on the standards to be used for this 
nomination are somewhat eccentric. Nevertheless, I am one of 
those who do continue to believe that, in the long run, the Senate 
and the Court will be better served, and we will be better off if the 
Senate resists the temptation to use the confirmation process as a 
way of expressing agreement or disagreement with the nominee’s 
constitutional philosophy. 


(2910) 



2911 


I don’t question the Senate’s right to do that. But I think it 
would be wiser not to do it. I think it would be wiser for a number 
of reasons. Some of them I spelled out in a piece I wrote that I 
would like to append to this statement and have introduced in the 
record. 

The Chairman. Without objection, it will be placed in the record. 

Mr. Bator. I think that it is wiser because I think a detailed in¬ 
quisition into the nominee’s views tremendously exaggerates the 
extent to which a single Justice’s votes can affect the constitutional 
developments. No single Justice decides things by himself or her¬ 
self. The notion that a single Justice by a single vote can represent 
a great danger to the country seems to me to be completely hysteri¬ 
cal. 

An individual Justice is part of a complex, dynamic process. His 
or her ability to influence the development of the law depends on a 
complicated web of circumstances. In the end, Justice Bork will be 
influential only to the extent that he can persuade four other Jus¬ 
tices, and the process whereby that is done is crucial. And it is to 
that process that Justice Bork—Judge Bork would bring exception¬ 
al insight, exceptional intelligence, and a wide background of 
public experience. 

Thank you. 

The Chairman. Thank you. And I apologize, Professor Bator, for 
mispronouncing your name. I’m sincerely sorry. 

Mr. Bator. It’s happened to me before, Senator. 

The Chairman. It happens to me a lot too, and that’s why I sin¬ 
cerely apologize. 

[Statement of Mr. Bator follows:] 



2912 


September 28, 1987 

STATEMENT OF PROFESSOR PAUL H. BATOR, TO 
THE SENATE COMMITTEE ON THE JUDICIARY, 

HEARINGS ON THE NOMINATION OF ROBERT H. 

BORK AS ASSOCIATES JUSTICE OF THE UNITED 
STATES SUPREME COURT 

Mr. Chairman and Members of the Committee : 

My name is Paul M. Bator. I am John P. Wilson Professor of 
Law at the University of Chicago; I am also counsel to the firm 
of Mayer, Brown & Platt, in Chicago. For 25 years I was a 
teacher at the Harvard Law School. In 1983 and 1984 I was Deputy 
Solicitor General and Counsellor to the Solicitor General of the 
United States, in the Department of Justice. I have been a 
student of the jurisdiction and work of the United States Supreme 
Court for all of my professional life. I am co-author of the 
current edition of a leading text on the Court's work. Hart & 
Wechsler's Th e Federal Courts and the Federal System. 

I have known Judge Bork for many years. I am generally 
familiar with his scholarly and judicial work, although I have 
not given it the detailed and gimlet-eyed perusal that others 
have. 

I will be very brief, since virtually everything that can be 
said about this nomination appears to have already been said. My 
own view is that the country will be better off with a Robert 
Bork on the Supreme Court than without him, because he is a 
person of surpassing intellectual distinction, because of his 
outstanding integrity and intellectual honesty, and because of 
his deep commitment to the rule of law. In terms of 
qualifications, the Bork nomination seems to me to be one of the 
five or six most distinguished of this century. We have had many 
mediocre Justices in this century, and not a large number of 
outstanding distinction. To reject a nominee of outstanding 
distinction would be to miss an important opportunity; it would 
result in a loss to the country. 


2913 


My ovm view on this matter is, I have come to realize in the 
last weeks, somewhat iconoclastic, even eccentric. Nevertheless, 
I continue to believe that in the long run the country and the 
Court will be better off if the Senate resists the temptation to 
use the confirmation process to express its agreement or 
disagreement with the nominee's views on various specific 
constitutional questions. I do not question the Senate's right 
to treat confirmation as a plebiscite on the nominee's views; and 
at various times various Senators have followed that practice. 

But there exists a countervailing tradition, too? many Senators 
have often acceded to the nomination of a well-qualified 
candidate notwithstanding disagreement with or misgivings about 
his or her views. Thus the Senate has two traditions available 
to it, and it is free to choose. In my judgment, the wiser 
course over the long run would be for the Senate to subordinate 
ideological and substantive issues, and to confirm candidates of 
great distinction even if there is sharp disagreement with his 
or her particular views. 

The reason for that conclusion I tried to spell out in a 
short piece 1 wrote a few weeks ago, a truncated version of which 
appeared in the New York Times on September 11 of this year. 

With the Committee's permission, I would like to append my 
original version of that piece to my statement and have it 
included in the record of these hearings. 

The practice of converting the confirmation process into a 
plebiscite based on constitutional philosophy seems to me to be 
mistaken for a number of reasons. First . it tends to focus 
attention on the short run rather than the long run. To make 
confirmation depend on substantive agreement on particular 
questions assumes that we can know today what tomorrow's issues 
will be and how a given nominee will vote on them in the 
future. But the overwhelming lesson of history is that both 
issues and Justices change; in the long run, the important 
question is not how the nominee will vote on tp^av'? cases, but 
on the qualities of mind and epirit and conscience that he or she 
will bring to questions that we cannot even perceive today. 



2914 


Second . a detailed inquisition into the nominee's views 
highly exaggerates the extent to which an individual Justice's 
individual vote will determine the course of constitutional 
law. No Justice can decide things by himself or herself. The 
notion that a single Justice by a single vote can represent a 
huge danger to the country seems to me quite hysterical. An 
individual Justice is part of a complex institution and a complex 
and dynamic process. His or her ability to influence the 
development of the law depends on a complicated web of 
circumstances and historical forces? it also depends, in the end, 
on a process which leads at least four other Justices to agree 
that a particular view represents the correct interpretation of 
the Constitution. 

For this reason — and this is my third point — what is 
really important is that that process of reaching decision — and 
the subsequent process of explaining it and justifying it in an 
opinion — be as intelligent and wide-ranging and deeply 
illuminated as possible. The Supreme Court exercises huge 
power. It is critical that the process by which that power is 
exercised be as intellectually rigorous and honest as 
possible. And that is why it is of fundamental importance that 
the persons exercising that power be persons of the greatest 
possible professional distinction, equipped with powerful and 
wide-ranging minds and spirits. To make everything turn on 
agreement with the votes that we guess the nominee will cast 
underestimates the contribution to the Court and the country made 
by Justices of powerful intellectual gifts and great intellectual 
honesty. What will be important about a Justice Bork, in the 
long run, is not just how he votes on the hot questions of today, 
but what qualities of inquiry and analytical rigor and 
intellectual honesty he brings to the Court's deliberations and 
to the processes whereby the Court's judgments are explained and 
justified in its opinions. 

Finally, my fourth reason for worrying about 
institutionalizing a practice that makes confirmation turn 



2915 


primarily on ideological considerations is that it threatens to 
enthrone a narrow and partisan definition of what is to be deemed 
as orthodox and acceptable in constitutional debate as the single 
official constitutional dogma of the country. I am profoundly 
disturbed by a confirmation process that rests on the proposition 
that there exits a single tradition or mainstream of 
constitutional philosophy and all who do not accede to it are to 
be excommunicated as being beyond the pale* For the fact is that 
what is characterized as the mainstream is often a partial and 
highly partisan version of the Constitution, and the effort to 
impose it as the single legitimate version is impoverishing and 
historically false. The mainstream includes both those who would 
give the Constitution the most expansive Interpretation and allow 
judges to exercise a wide power to redress wrongs and expand 
rights as they see fit, and those who see a more limited role for 
the Court, closer to the text and intention of the framers of the 
Constitution and the Amendments, and who support a larger role 
for the democratic branches of government. And many of the 
decisions agreement with which has been used in these hearings as 
a touchstone of whether one is acceptably right-minded or 
irremediably wrong-headed were themselves highly controversial 
decisions, many reached by 5-4 or 6-3 votes, with majorities and 
minorities often split in their reasoning 3 or 4 ways. What is 
the "mainstream” in this context? Justices Jackson and Harlan 
never agreed to the proposition that the First Amendment applies 
across the board to the States; does that make them dangerous 
characters who should not be confirmed today? The reasoning of 
Shelly v. Kramer was attacked os unprincipled and unintelligible 
by my teacher and colleague, Professor Wechsler, in his 
celebrated article on Neutral Principles; is he now to be deemed 
beyond the pale? Justice Black was a furious critic of the 
notion that the Court is free to create new rights out of the 
penumbra and silences of the Constitution: is he now to be 
redefined as a dangerous radical who should not have been on the 
Court? And in his great book The Spirit of Liberty . Judge 
Learned Hand said that Marburv v. Madison itself was probably 
illegitimate; are we to excommunicate him too? 



2916 


There is something profoundly disturbing about a process that 
requires the Senate to reach anything more than the most general 
and generous and wide-ranging judgments about what is to be 
deemed acceptably orthodox in constitutional debate. And what 
has been characteristic about the attack on Judge Bork, it seems 
to me, is precisely that a single (and highly controversial) 
theory of Constitutional interpretation has been put forward as 
the only legitimate one, and all who disagre with it read out of 
the mainstream. And, of course, it is particularly ironic that 
those who are now so cheerfully and aggressively encouraging the 
Senate to impose this narrow orthodoxy are persons who, on other 
days, never tire of flaunting their special fervor about the 
First Amendment. 

To conlude: my recommendation to the Committee is that it 
adhere to the practice which has sometimes been adopted, of 
giving a heavy presumption in favor of the President's nominee if 
that person possesses outstanding professional, intellectual and 
moral gual i fications for the office of Supreme Court Justice. 

That practice seems to me to put the focus where it belongs; it 
restrains the winds of politicization and partisanship that 
endanger the Court; it recognizes that intellectual depth and 
integrity are as important to the law as bottom-line votes; and 
it de-escalates the importance of creating an official definition 
of what is acceptably right-minded in Constitutional debate. 

On that approach, 1 don't think there is much doubt that 
Judge Bork passes with flying colors. He is a nominee of 
outstanding professional, intellectual and moral 
qualifications. The processes of the Supreme Court's 
deliberations will be deepened and expanded by his presence; and 
in the long run that cannot but be an important service to the 
Court and this country. 

Let me say one more word about Judge Bork. It seems to me 
important to note that, in each of the various roles and 
institutional contexts where he has operated, he has served with 



2917 


outstanding distinction in terms of the requirements q£ that 
particular role and institution - When he was a Professor, he did 
just what we want Professors to do: he was creative, 
controversial, provocative, sometimes wrong-headed, but always 
illuminating and interesting. As Solicitor General, Judge Bork 
performed in the highest traditions of that great office? and I 
hope members of the Committee have carefully read the really 
powerful and quite moving letter that was written to the 
Committee — which I would also like to incorporate as an 
appendix to this Statement — by the lawyers who served in that 
office when Judge BorX was Solicitor General — a letter in which 
these splendid lawyers, of every political persuasion, speak 
about Judge BorX's professionalism, tolerance, and openness, 
about his dedication to judicial process and reasoned decision- 
maXing, and his commitment to the rule of law and to respect for 
individual liberties and civil rights. And, finally, as a judge, 
Mr. Bork has served with exemplary distinction and within a 
completely appropriate institutional frame of reference in that 
role, too. It seems to be profoundly unjust, therefore, to 
suggest that when Judge BorX becomes a Supreme Court Justice, he 
will somehow go completely haywire and start operating as a 
radical eccentric oblivious to the traditions and institutional 
constraints of that office. There is just no evidence for that 
proposition. 

My conclusion, Mr. Chairman, is simple: in this, the 200th 
year of our Constitution, the Senate would render the country and 
the Supreme Court a great service by confirming Robert BorX to be 
an Associate Justice of the United States Supreme Court. 



2918 


APPENDIX 1 


July 14, 1*87 


SUPREME COURT APPOINTMENTS: 

BOH THE SENATE CAN SERVE 
THE COUNTRY 

by 

Raul M. Bator 

A debate is raging about tba Bork nomination. One gueation 
tbat bas baan raised is tba proper role of tba Senate! should 
Sanators taka into account whether they agree or diaagraa with 
the nominee's constitutional philosophy? In an Op-Ed articls in 
the Tinas (7/3/87), Professor Herman Schwartz danonstrated that 
Supreme Court nominations hava, throughout our history (and 
particularly in tba early period) baan scrutinized by the Senate 
on ideological grounds, and that tbara are cases where 
distinguished and highly qualified noninaes ware rejected on such 
grounds. Prom this Hr. Schwartz ooncludas that it would be 
desirable and legitimate for Sanators to reject the nomination of 
Robert Bork — no matter how distinguished and qualified he may 
be — simply because they have serious disagreements with his 
views on constitutional issues. 

Hr. Schwartz's history is aoourata as far as it goes, but 
tells only a part of the story. Ideological considerations hava 
sometimes played a major rola; but there eziBta an important 
countervailing tradition as wall. Particularly in recant times, 
tba more typical practice has been to mute ideologioal issues, 
and moat Senators hava, moat of the time, bean willing to support 
the confirmation of a wall-qualified nominee notwithstanding 
strong disagreement with his views. It was that tradition of 
fcrebaaranca that explains the overwhelming vote in favor of 
Justice Scalia, and that in fact has animated moat Sanators over 
the past loo years. 

Ha hava, therefore, two traditions available to us, and wa 
are free to choose between them. Which is the better road? 

Would it be good for the country, in the long run, to adopt Hr. 
Schwartz'a approach, and to encourage Senators to test all 



2919 


ippoittunti by an ideological test? 

I say all appointments, because tbla auraly la a oaaa where 
sauce for tba 5001 a ia aauea for tha gander. If it ia legitimate 
for libaral Senators to work to dafaat a highly distinguished 
nominee bacauaa thay do not like hia views, auraly tha same ia 
true whan a Danocratic President nominates an activist jurist 
whose views ara unpalatable to advoeatas of judicial restraint. 

If it ia appropriate to dafaat tha Bork nomination because ha 
might change tha complexion of tha Court, it must ba squally 
appropriate to dafaat a nominee, no matter hov distinguished, who 
might shift tha Court's "balance" in the other direction. 

In my judgment it would ba unwise, and a disservice to tha 
country, tc politicize the appointments process by adopting tha 
practice of tasting Supreme Court appointments by ideological 
standards. Hare ara my reasons: 

(1) Making idsologieal considerations paramount in tha 
confirmation process will undoubtedly encourage Presidents to 
play it safe: to nominate candidates who have no controversial 
views or have not expressed them. It will act as a severe 
deterrent to tha nomination of any candidate with an outspoken or 
controversial reoord on tha great constitutional Issues. The 
result vill be to put pressure on the system to favor 
mediocrities rather than persons of outstanding qualities of mind 
and spirit. (This result vill ba compounded if we legitimize the 
practice of allowing a minority of opposed Senators to filibuster 
a nomination to death on ideological grounds.) It is men like 
Brandeis and Hughes, Frankfurter and Black — men with brilliant 
and controversial political or scholarly careers -- who are 
likely to (and did) arouse intense ideological opposition. 

The Brandeis ease is a telling example. Like Bork, Brandeis 
was a candidate of surpassing professional distinction and 
intellectual integrity. Hia views, however, were regarded as 
extremist and radical by many conservatives. The nomination 
evoked serious ideological opposition, but in the end good sense 
prevailed and Brandeis was confirmed. But suppose a majority of 
the Senators had, in 1S1C, been in deep disagreement with 
Brandeis' philosophy. Would it be good for the country to put 



2920 


pressure on Presidents not to Dominate a Brandsis? To let bin be 
defeated if be vere nominated? Would tbe country have been 
batter off if liberal opposition to Charles Evan Hughes' 
nomination had succeeded? 

(2) allowing ideological considerations full play in the 
confirmation process inevitably focuses attention on short-term, 
not long-term, considerations. It involves a judgment based on 
guesses as to how the nominee sill vote on today's issues. But 
the Justices tend to be around for a long time. Issues change; 
we cannot know what will be tbe great constitutional challenges 
and crises of tomorrow, it is a mistake to worry too much about 
how a Justice will vote on cases on the current docket. Far more 
important is what qualities of mind and spirit be will bring to 
issues that are unperceived or only dimly perceived today. If a 
nominee is a person of exceptional intellectual and moral 
strength and integrity, he is likely to make a creative and 
important contribution to the solution of tomorrow's problems. 

(1) It's not only Issues that change. People change too. 
History is full of examples of how supreme Court Justices change 
over time. Justice Black, strongly committed to evary liberal 
cause at the start, became a dissenter to many Warren Court 
forays. Justice Blackmun, appointed by President Nixon on 
account of his conservative views, has become a member of tbe 
Court's liberal wing. Chief Justice Warren surprised (and 
disappointed) President Elsenhower, as Holmes bad surprised and 
disappointed Theodore Roosevelt. Despite virulent opposition by 
liberals to Hughes' nomination, Hughes played a distinguished 
moderating role on the court. 

What all this shows Is that tbe dynamics of the Supreme 
Court are quite different from those suggested by the superficial 
pigeon-holing of nominees into pat ideological camps. In the end 
It turns out that the Justices — or at least the fine ones — 
become judges, not partisans for narrow ideological causes. 

(4) Allowing the current "hot” issues to dominate the 
confirmation process distorts our evaluation of tbe nominee and 
of the impact he might make on the Court. Already, a caricature 
of Robert Bork — based on quoted snippets pasted together from a 



2921 


richly productive 25-year career ae Professor, public pervert and 
Judge -- ie emerging. What ie driven out in thia politicieed 
atmosphere is any serious attempt to reach a balanced evaluation 
ot the serious and entirely legitimate Constitutionalism that 
animates Bork. what is also left out is a sense of the enormous 
contributions that Justices of greet intellectual distinction end 
moral stature can make to the work of the Court. What was 
important about Brandeis was not that he was pro-union, or 
favored particular items of social welfare legislation, but the 
fact that he brought remarkable creative insight end intellectual 
honesty to the development of the lev. Whet will be important 
about Robert Bork, in the long run, is that he will add insight 
and honesty and creativity to the quality of the Court's 
deliberations and opinions. 

Supreme Court vacancies present us with an Important 
opportunity and challenge. It would be ead if we took on the 
habit of insisting that the vacancy be filled either by a person 
whose views pleased everyone, or by one who has uttered the 
correct buss-words to meet the current Senate's litmus test for 
ideological correctness. All too rarely does a President give us 
the opportunity of having on the Court a person of remarkable 
qualities of mind and spirit, when he does so, we should grasp 
it with fervor. The country was better off in having a Brendeis 
on the Court; it will be better off for the presence of a Hobart 
Bork. 


(Paul M Bator is John p. Wilson 
Professor of hew at the 
Pniversitv of Chicaoo. He was 
Pcp^tY. 

Counselor to the Solicitor 
general of the United states 
in 1963 end 



2922 


APPENDIX 2 


September 17, 1987 


The Honorable Joseph Biden, Jr. 

Chairman 

Committee on the Judiciary 
United States Senate 
Senate Office Building 
Washington, D.C. 20510 

Dear Hr. Chairman: 

The undersigned served as attorneys in the Office of the 
Solicitor General during the tenure of Robert H. Bork. We are 
writing to advise the Committee of our collective opinion 
regarding Judge Bork's traits of character, judgment, and legal 
ability, which bear upon his fitness to hold the office of 
Associate Justice of the Supreme Court of the United States. 
Some of us served only with Judge Bork, while others served with 
one or more other distinguished Solicitors General. We consti¬ 
tute a group with diverse backgrounds and varying political and 
philosophical outlooks. We are united, however, in the views 
expressed herein. 

In cataloguing Judge Bork’s qualifications, one must begin 
with his legal talents. He has a penetratingly logical mind, 
seasoned by a thoughtful and wise understanding of the nature of 
law and the judicial process. We think there can be (and in fact 
is) no dispute that Judge Bork would make a very substantial 
intellectual contribution to the work of the Supreme Court. 

As Solicitor General, Judge Bork displayed a profound 
respect for the role of the Supreme Court in our system of 
government and an enlightened appreciation of the Solicitor 
General's unique relationship with and responsibility to the 
Court. As a teacher, scholar, and practitioner. Judge Bork had 
given serious thought to, and had written extensively about, many 
of the fundamental issues that confront the Supreme Court. 
During his tenure as Solicitor General, however, he never allowed 
his personal views to interfere with his obligation to represent 
the interests of the United States. 

In all cases within our experience, including those that 
presented issues on which Judge Bork had previously formed well- 
developed legal judgments, he was without fail accessible to 
those with whom he worked and tolerant of views at odds with his 
own. He listened carefully to opposing arguments, frequently 
relishing the opportunity to test his own views in the cauldron 
of debate. He fully considered all sides before reaching a final 
judgment, and he always provided cogent reasons for his 



2923 


The Honorable Joseph Biden, Jr. 
September 17, 1987 
Page 2 


conclusions, particularly on those rare occasions where his 
judgment departed from the recommendations of his staff. 

In short, our sense, based on years of dealings with Judge 
Boric concerning a host of difficult and sensitive legal issues, 
is that he is genuinely open to persuasion, even on questions to 
which he has devoted extensive thought. The Robert Bork we know 
bears no resemblance to the image of a closed-minded ideologue 
that some have sought to foster. 

While Judge Bork's jurisprudence has been accurately 
characterized as "conservative" — in the sense that he has held 
firmly to principles of judicial restraint — his opinions have 
been well within the mainstream of American legal thought, judge 
Bork's philosophy embodies a deep respect for and thoughtful 
consideration of the nature of the judicial process and an 
unflinching dedication to reasoned decision-making. Moreover, we 
know from first-hand experience that, as Solicitor General, Judge 
Bork displayed an abiding commitment to the rule of law and to 
respect for individual liberties and civil rights. 

We appreciate the opportunity to convey these views to the 
Committee. 


Richard A. Allen, Esq. 
Zuckert, Scoutt, Rasenberger 
& Johnson 

888 17th Street, N.W. 
Washington, D.C. 20006 

John F. Cooney, Esq. 
Dickstein, Shapiro a Morin 
2101 L Street, N.W. 
Washington, D.C. 20037 

Mark L. Evans, Esq. 

Miller & Chevalier 
Metropolitan Square 
655 15th Street, N.W. 
Washington, D.C. 20005 

B. Bartow Farr, III, Esq. 
Onek, Klein & Farr 
2550 M Street, N.W. 
Washington, D.C. 20037 


Andrew L. Frey, Esq. 

Mayer, Brown t Platt 

2000 Pennsylvania Avenue, N.W. 

Suite 6500 

Washington, D.C. 20006 

Paul L. Friedman, Esq. 

White & Case 

1747 Pennsylvania Avenue, N.W. 
Washington, D.C. 20006 

Kenneth S. Geller, Esq. 

Mayer, Brown & Platt 

2000 Pennsylvania Avenue, N.W. 

Suite 6500 

Washington, D.C. 20006 

Keith A. Jones, Esq. 

Fulbright i Jaworski 

1150 Connecticut Avenue, N.W, 

Washington, D.C. 20036 



The Honorable Joseph Biden, Jr. 
September 17, 1987 
Page 3 


Professor Edmund W. Kitch 
University of Virginia 
Law School 

Charlottesville, VA 22901 

Jewel S. LaFontant, Esq. 

Vedder, Price, Kaufman, 
Kammholz & Day 
115 S. LaSalle Street 
Chicago, IL 60603 

Gerald P. Norton, Esq. 

Pepper, Hamilton & Scheetz 
1777 F Street, N.W. 

Suite 200 

Washington, D.C. 20006 

William L. Patton, Esq. 

Hopes a Gray 

225 Franklin Street 

Boston, MA 02110 

A. Raymond Randolph, Esq. 
Pepper, Hamilton & Scheetz 
1777 F Street, N.W. 

Seventh Floor 
Washington, D.C. 20006 

John P. Rupp, Esq. 

Covington a Burling 

1201 Pennsylvania Avenue, N.W. 

Washington, D.C. 20044 


Harry R. Sachse, Esq. 

Sonosky, Chambers a Sachse 
1250 Eye Street, N.W. 

Suite 1000 

Washington, D.C. 20005 

Howard E. Shapiro, Esq. 

Van Ness, Feldman, Sutcliffe 
S Curtis 

1050 Thomas Jefferson St., N. 
Seventh Floor 
Washington, D.C. 20007 

Stuart A. Smith, Esq. 

Shea a Gould 
330 Nadison Avenue 
Eleventh Floor 
New York, NY 10017 

Allan A. Tuttle, Esq. 

Patton, Boggs & Blow 
2550 M Street, N.W. 

Ninth Floor 

Washington, D.C. 20037 

Stephen L. Urbanczyk, Esq. 
Williams a Connolly 
B39 17th Street, N.W. 
Washington, D.C. 20006 



The Honorable Joseph Biden, Jr. 
September 17, 1987 
Page 4 


2925 


The undersigned subscribe to the statements in this letter 
regarding Judge Bork's character, judgment, and legal ability but 
do not believe that it is appropriate for them, as judges, to 
make any recommendation to the Senate with respect to the 


confirmation decision. 


Judge Danny J. Boggs 
U.S. Court of Appeals for 
the Sixth Circuit 
417 U.S. Post Office Courthouse 
Cincinnati, Ohio 4S202 

Judge Frank H. Easterbrook 
U.S. Court of Appeals for 
the Seventh Circuit 
219 South Dearborn Street 
Room 2760 

Chicago, IL 60604 


Judge Daniel K. Friedman 
U.S. Court of Appeals for 
the Federal Circuit 
717 Madison Place, N.W. 

Suite 901 

Washington, D.C. 20439 

Judge Edward R. Korman 
U.S. District Judge 
Eastern District of New york 
225 Cadman Plaza East 
Room 448 

Brooklyn, NY 11201 


cc: Members of the Senate Judiciary Committee 



2926 


The Chairman. Professor Monaghan. 

TESTIMONY OF HENRY MONAGHAN 

Mr. Monaghan. Mr. Chairman, members of the committee, my 
name is Henry Paul Monaghan. I am Harlan Fiske Stone professor 
of constitutional law in Columbia University. And I appear to urge 
the Senate to confirm Robert Bork as an Associate Justice of the 
Supreme Court. 

In my view, no more than a score of persons has ever been nomi¬ 
nated to the Supreme Court with such surpassing credentials. 

Judge Bork’s nomination should have been met with acclama¬ 
tion. But, from the beginning, this nomination has been the occa¬ 
sion for a wide ranging referendum on the Reagan Presidency and 
on various specific Supreme Court decisions. In that controversy. 
Judge Bork’s qualifications, indeed Judge Bork himself has been 
wholly submerged. 

Judge Bork has been replaced by a wholly symbolic, larger than 
life Judge Bork, and every effort has been made to depict him as a 
dangerous liberty threatening radical. 

In my introductory remarks, I want to make only two points. 
First, I want to emphasize that there is no evidence, none at all, 
that either Judge Bork’s general judicial philosophy or his attitude 
toward specific Supreme Court decisions is radical or atypical. 

Judge Bork's general views, as well as his views on specific 
topics, are shared in whole or in part by a wide range of respected 
judges and academics. Of course, these views have been rejected by 
others, and the committee has heard some of those rejecters. But 
the point is not who is ultimately right on any given issue if there 
were any tribunal on earth that could settle such a question. 

The point is that, on issue after issue, topic after topic, a great 
many knowledgeable and thoughtful persons quite agTee with 
Judge Bork. I therefore simply do not understand how it can be 
said that Judge Bork is some radical figure standing far outside the 
mainstream of legal thought. He has in fact been an important 
contributor to the mainstream, particularly on the appropriate role 
of courts in the process of constitutional government. 

My second point relates to a different subject, namely Judge 
Bork’s alleged change of mind. For some, the objection to Judge 
Bork is not that his views are radical, but that he has changed his 
mind. 

I want to put aside such matters as just how much Judge Bork 
has changed his mind, as well as just how radical his views were to 
begin with. The important point is that Judge Bork has changed 
his mind and, in my view, there will be more changes. I certainly 
hope so. 

In the last few years, I’ve had occasion on at least four separate 
occasions to talk with Judge Bork at some length. I think that I’ve 
developed a reasonably good idea of his beliefs, not all of them, but 
certainly some of them. At least some of the views that Judge Bork 
has expressed to this committee he has expressed to me before his 
nomination. This is true both in the importance of precedent in 
constitutional adjudication and the fact that the equal protection 



2927 


clause of the 14th amendment must now be understood to forbid 
any substantively unreasonably classification. 

Judge Bork’s views have evolved and they will continue to 
evolve, and this is exactly how it should be for any lawyer pos¬ 
sessed of an intelligent inquiring fair intellect who deals seriously 
with the hard issues of constitutional law. 

For me, therefore, the fact that Judge Bork has shown the capac¬ 
ity to change his mind is among the strongest possible reasons for 
confirming him. 

In closing, permit me to return to my first point. The hard fact is 
that Judge Bork’s views are not out of the mainstream. There are 
more than a score of distinguished circuit judges and law profes¬ 
sors who hold views similar to those of Judge Bork, not all of 
whom, I might add, are as open-minded as Judge Bork. 

If Judge Bork is not confirmed, the administration will select an¬ 
other moderate conservative. I hope you will not think me pre¬ 
sumptuous to say that the second nomination will pass. To my 
mind, therefore, what is at stake is not the immediate composition 
of the Supreme Court. What is at stake here is something quite dif¬ 
ferent. The impact of a process of government on a man’s reputa¬ 
tion. 

I want to insist that it is simply wrong to depict Judge Bork as a 
radical or to intimate that he lacks integrity. And it is wrong to 
say that his confirmation would constitute a serious threat to the 
liberties of the American citizen. 

It is deeply upsetting to me to see a man with so distinguished a 
public career made the object of such an attack. If Judge Bork is 
not confirmed, the course of history will not change, but we shall 
have witnessed a small and, for me, sad episode in the Senate’s his¬ 
tory. 

Thank you. 

Senator DeConcini. Thank you very much. We will now hear 
from Ms. BeVier, is it? 

Ms. BeVier. BeVier, yes. 

Senator DeConcini. Thank you. 

Ms. BeVier. 

TESTIMONY OF LILLIAN RIEMER BeVIER 

Ms. BeVier. I am Lillian BeVier, and I am the Doherty Charita¬ 
ble Foundation professor of law at the University of Virginia. 

I am afraid that much of what I have to say in my opening re¬ 
marks you will find somewhat an echo of themes that have been 
stressed before, but I think at this point there is little new that can 
be said, and, indeed, some points do bear saying over and over 
again, and do not become less true for the fact that they are re¬ 
peated. 

It is useful to remind ourselves of why a philosophy of judicial 
restraint is so consistent with our basic constitutional scheme. The 
focus of these hearings on that issue has been exceptionally valua¬ 
ble, yet I know for some of you questions linger. 

Just what does judicial restraint require of judges in the context 
of particular cases? Does it necessarily imply overruling past deci¬ 
sions reached by activist judges? 



2928 


Well, the answer is no. Does it invite abdication of, or, worse, se¬ 
lective attention to the judicial duty to protect individual and mi¬ 
nority rights that do exist? Once again, clearly, no. 

Well, as everyone knows by now, when Judge Bork was Professor 
Bork, he was often highly critical of Supreme Court decisions. This 
is what constitutional law professors are paid to do. None of us are 
paid enough. I think he was probably more underpaid than most. 
All things considered, he was definitely more underpaid than most. 

He has been rather virulently attacked for some of the conclu¬ 
sions he reached when he was a scholar. Most often, though, his 
critics have been confused about what exactly Judge Bork has said. 

They have misunderstood his criticism of the Court’s reasoning 
and equated it with criticism of the Court’s results. 

But Judge Bork’s critical comments have always been aimed at 
the reasoning of Supreme Court opinions and never at their re¬ 
sults, and criticism focused on the Court’s reasoning is a vital ele¬ 
ment in our system of checks and balances, for it is reasons and 
not raw political power that must justify everything the Court 
does. 

Correct reasons give legitimacy even to the most controversial 
decisions. Bad reasons can transform even the results we like into 
abuses of power. 

And if scholars do not worry about judicial abuses of power, who 
will? And if no one does, what will become of our democracy? 

Because he has been critical of some of the Court’s past cases, 
some of his opponents have indulged in a rather simplistic predic¬ 
tion. If Judge Bork is on the Court they say he will vote to roll 
back the clock and massively repudiate the decisions whose reason¬ 
ing he has questioned. 

But Senators, this is not going to happen. As Judge Bork himself 
has repeatedly emphasized, it is one thing to ask whether the 
Court should, in the future, recognize new rights that the Constitu¬ 
tion does not specify. It is quite another thing altogether to ask 
how the Court should deal with the rights that have, even mistak¬ 
enly, been recognized in the past. 

Whether a precedent should be followed involves different con¬ 
siderations, legitimately different from whether it should have 
been created in the first place. 

Even if a past case were a mistake, it may very well be that it 
neither can nor should be undone, and in some sense, overruling 
precedents is like trying to undo the consequences of a mistake. We 
all know, Judge Bork knows, that while we can learn from our mis¬ 
takes we cannot undo their consequences. 

Of course any rigid notion that precedents ought to be binding 
just because they are precedents is unacceptable. With such a 
notion we would still be living in a Plessy v. Ferguson world. But 
precedents usually ought to be followed, even by judges who have 
been highly critical of them, and there is no inconsistency here 
with a philosophy of judicial restraint. We need not feel we have to 
undo the past in order to restrict the Court in the future to the 
creation only of rights with genuine sources in the Constitution. 

Judge Bork has also consistently emphasized another important 
aspect of his kind of judicial restraint. It is totally consistent with 
vigorous enforcement and protection of the rights that are in the 



2929 


Constitution. The Court need not always be willing to create new 
rights in order to fulfill its role. Indeed, the Court’s most basic role 
is to stand vigilant against encroachments of existing rights. 

The Court must give these rights firm and consistent enforce¬ 
ment. The Court must be willing to define their scope fully and ex¬ 
pansively. And if the Court concludes that a claim lacks merit, it 
must carefully and thoroughly explain why. Judge Bork’s philoso¬ 
phy of judicial restraint plainly embraces these essential compo¬ 
nents of judicial responsibility. 

This is completely obvious when you look at his opinions as a cir¬ 
cuit court judge. Indeed, it is quite frankly difficult for me to be¬ 
lieve that one could read those opinions and conclude otherwise. 
The opinions exemplify both Judge Bork’s superb judicial crafts¬ 
manship and his resolute fair mindedness. 

In the debates over this nomination, concern with specific out¬ 
comes has tended to take the place of attention to matters of judi¬ 
cial method. Questions about Judge Bork’s judicial philosophy have 
distracted us from equally important inquiries about whether the 
judicial obligation to explain has been adequately discharged. We 
forget at our peril, I think, that a stated rationale is the only pur¬ 
chase that any member of the Court’s constituency has upon its de¬ 
cision. If the Court will not tell us how it reached its decisions— 
what were its premises of reasoning, what its main lines of author¬ 
ity, what its factual conclusions—then we cannot hope to be genu¬ 
ine participants in its decisionmaking in the future, and the Court 
will become, truly, accountable to no one. 

The obligation to explain, to give reasons, to fully articulate lines 
of analysis considered relevant is an obligation upon which Judge 
Bork has never defaulted. 

In short, when Judge Bork practices judicial restraint, he neither 
abdicates the judicial obligation to protect individual and minority 
rights nor does he shrink from appropriate opportunities to expand 
those rights. 

And when he practices judicial restraint he does so in the very 
finest tradition of his calling. Thank you. 

[Prepared statement follows:] 



2930 


TESTIMONY BEFORE THE 
SENATE JUDICIARY COMMITTEE 
ON THE NOMINATION OF ROBERT BORK 
prepared by 
LILLIAN R. BEVIER 

DOHERTY CHARITABLE FOUNDATION PROFESSOR OF LAW 
SCHOOL OF LAW 
UNIVERSITY OF VIRGINIA 


It is useful to remind ourselves why a philosophy of 
judicial restraint is so consistent with our basic 
constitutional scheme. The focus of these hearings on that 
key issue has been valuable. Yet questions linger. Just 
what does "judicial restraint" require of judges in 
particular cases: Does it necessarily entail overruling 
pa6t decisions reached by activist judges? The answer is 
no. Does it invite abdication of — or, worse, selective 
attention to — the judicial duty to protect individual and 
minority rights that jle exist? Again, the answer is no. 

As everyone knows by now t when Judge Bork was Professor 
Bork he was often highly critical of Supreme Court 
decisions. {This is what professors of constitutional law 
are paid to do, of course.) {None of us is paid enough, but 
all things considered Judge Bork was more underpaid than 
most.) And he has been rather virulently attacked for the 
conclusions he reached when he was a scholar. Most often. 



2931 


2 

his critics have been confused about what -- exactly — 
Judge Bork has said. They have misunderstood his criticism 
of the Court's reason ing by equating it with criticism of 
the result s. But Judge Bork's critical comments have ALWAYS 
been aimed at the reasoning of Supreme Court opinions — and 
ne ver at their results, we must remember that it is reasons 
— and not raw political power — that justify what the 
Court does. Correct reasons give legitimacy to what the 
Court does. Bad reasons can transform even its best 
decisions into abuses of power. 

Because he has been critical of some of the Court's 
past cases, his opponents have indulged in a simplistic 
predictions If Judge Bork is on the Court, he'll vote to 
"roll back the clock* and massively repudiate the decisions 
whose reasoning he has questioned. But Senators — tfrjg 
lsnl t-gg> lng_.tfl_haBB£D. 

As Judge Bork has repeatedly emphasized, it is one 
thing to ask whether the Court should in the futu re 
recognize new rights that the Constitution doesn't specify. 
It is another matter entirely to ask the Court should deal 
with the rights that have -- even mistakenly — been 
recognized in the past. Whether a precedent should be 
followed involves a set of considerations legitimately 
different from whether it should have been created in the 
first place. Even if a past case were a "mistake" it may 
very well be that it neither can nor should be undone. In 
some sense, overruling precedents is like trying to undo the 


88-374 0 - 89-8 



2932 


consequences of a mistake. But we all know — Judge Bork 
knows too — that while we can learn from our mistakes we 
can't undo their consequences. A rigid notion that 
precedents ought to be binding just because they're 
precedents is of course unacceptable — with such a notion 
we'd still be living in a Plessy v. Ferguson world. But 
precedents usually ought to be followed, even by judges who 
have been highly critical of them. And there is no 
inconsistency here with a philosophy of judicial restraint. 
We need not feel we have to undo the past in order to 
restrict the Court In the future to the enforcement of 
rights with genuine sources in the Constitution. 

Judge Bork has also consistently emphasized another 
important aspect of his judicial philosophy: it is fully 
consistent with full and vigorous enforcement and protection 
of the rights that are in the Constitution, The Court 
needn't always be willing to create new rights in order to 
fulfill its role as guardian of our liberties and defender 
of the constitutional order. The Court's most basic 
function is to stand vigilant against encroachments of 
existing rights. This goes without saying. The Court must 
give these rights firm and consistent enforcement when the 
occasion arises. The Court must be willing to define their 
scope fully and expansively in the often hostile world. In 
addition, if the Court concludes that a claim lacks merit, 
it must carefully and thoroughly explain why. That Judge 
Bork's philosophy of judicial restraint embraces these 



2933 


essential components of judicial responsibility is plainly 
illustrated by his opinions as a circuit court judge. It 
is, quite frankly, difficult for me to believe that one 
could read these opinions and conclude otherwise. The 
opinions exemplify both Judge Bork's superb judicial 
craftsmanship and his resolute fairmindedness. 

In the debates over this nomination, concern with 
specific outcomes has tended to take the place of attention 
to matters of judicial method. Questions about Judge Bork's 
judicial philosophy have distracted attention from equally 
important inquiries about whether the judicial obligation to 
expla in has been adequately discharged. He forget at our 
peril, 1 think, that a stated rationale is the only purchase 
that any member of a court's constituency has upon its 
decision. If a court won’t tell us how it reached its 
decisions, what were its premises of reasoning, what its 
main lines of authority, what its factual conclusions, then 
we cannot hope to be genuine participants in the court's 
future decision-making processes and the court will become, 
truly, accountable to no one. The obligation to explain, to 
give reasons, to fully articulate lines of analysis 
considered relevant is an obligation on which Judge Bork has 
never defaulted. Judge Bork's opinions don't merely 
announce their conclusions. They explain their results. 

In short, when Judge Bork practices judicial restraint, 
he neither abdicates the judicial obligation to protect 
individual and minority rights, nor does he shrink from 



2934 


5 

appropriate opportunities to expand those rights. And when 
he practices judicial restraint, he does so in the very 
finest tradition of his calling. 



2935 


Senator DeConcini. Thank you, Ms. BeVier. Thank you very 
much. 

Mr. Levin. 


TESTIMONY OF LEO LEVIN 

Mr. Levin. Mr. Chairman, members of the committee, I am privi¬ 
leged to be here today. I have submitted a statement for the record. 

Senator DeConcini. Without objection, it will appear in the 
record. 

Mr. Levin. Thank you. And I simply want to make, at this stage 
of the proceedings, two brief points in the oral presentation. 

The first. I have come to know Judge Bork. I have come to know 
him, it began in professional associations, but we got to know him 
as a person. 

The Judge Bork that I know has absolutely no resemblance 
whatsoever to the Judge Bork that is being caricatured in many 
places. 

This person does not have an ounce of prejudice, racial, ethnic, 
religious, sexual, in his body, and I have no hesitation whatever on 
that score. 

The second point that I should like to make, mindful of the time, 
and so on, is that Judge Bork himself, back in 1984, wrote in a foot¬ 
note in the Zech case, that views he had expressed in academic life 
were—and I quote—“completely irrelevant to the function of a cir¬ 
cuit judge.” End of quote. 

And I make these comments as an academician, mindful of the 
need, particularly in certain environments of being provocative, of 
demanding that there be a tension to other ideas. 

And I would just like to say that by the same token, where prece¬ 
dent controls—and I think it is fairly clear that Judge Bork has re¬ 
iterated his dedication to precedent—where precedent controls, the 
writing of the academician, however provocative, must, and I am 
confident, will give way in the decision of actual cases. 

I should just like to say that I join my colleagues here, and any 
number of others who have submitted statements and testified, in 
warmly supporting the confirmation of Judge Robert H. Bork as an 
Associate Justice of the Supreme Court, confident that this is in 
the very best interests of the country. 

Thank you very much. 

[Prepared statement of Mr. Levin follows:] 



2936 


STATEMENT 

OF 

A. LEO LEVIN 

on the nomination of Honorable Robert H. Bork to 
be Associate Justice of the Supreme Court of the 
United States. 


SENATE JUDICIARY COMMITTEE 
HONORABLE JOSEPH BIDEN 
Chairman 

September 28, 1987 


My names is A. Leo Levin. I serve as Leon Meltzer 
Professor of Law at the University of Pennsylvania. I 
first joined the Penn Law School faculty in 1949 and I 
have taught at the University of Pennsylvania since that 
time except for relatively brief periods at other academic 



2937 


- 2 - 


institutions and rather more extended law-related 
government service. 

I came to know Judge Bork a little over twelve years 
ago in the course of my duties as Executive Director of 
the Congressionally-created Commission on Revision of the 
Federal Court Appellate System. He was at that time 
Solicitor General of the United States. We became 
personal friends. He has been at our home and I have been 
at at his any number of times during the intervening 
years. I believe that I have come to know the man. 

Judge Bork is a man of integrity, exceedingly bright, 
sensitive and deeply devoted to the federal judicial 
system. Moreover, he has known tragedy in his personal 
life. I do not believe that there is any racial, 
religious, ethnic, or sexual prejudice in the man. 

Indeed, I have seen evidence to the contrary. I believe 
that if confirmed he will serve with great distinction to 
the great benefit of the country. 

The issues that the Supreme Court will deal with in 
the future can hardly be imagined. Certainly, given the 
authority of precedent, they will be different than those 
of the past. Justice Brennan, in an eloquent address, 
recently reminded us of the need to work now on developing 
the law that is to govern man in space. It will not be 



2938 


3 - 


too many years before issues of the space age will come 
before the Supreme Court, a Court that surely will be 
different than the present Court and, one can hope, a 
Court no less distinguished. I believe that Robert Bork 
has the qualities to add lustre to that Court, a Court 
that one can confidently predict will build on the 
precedents developed by its predecessors, as Judge Bork 
has properly assured this Committee that he will do. 
Phrased differently, what the Court needs and what the 
country needs are the qualities of a Robert Bork. 

During the course of our professional associations, 
from my first association with Judge Bork to this day, I 
have found him sincerely concerned with and devoted to the 
federal judicial system. It was on his initiative that 
Attorney General Levi appointed a departmental committee 
to study the problems of the operation of the federal 
judicial system, in one sense parallelling the work of the 
Hruska Commission, but actually broader in scope. Judge 
Bork chaired that committee and its report bears his 
name. This is not the occasion to detail the substance of 
his approach that commands increasing attention today. I 
am by no means suggesting that I admire Judge Bork because 
I agree with everything he says, even in that report. We 
have differed and continue to differ, on questions 



2939 


involving the structure of the federal judicial system, 
but my respect for Robert Bork has never been diminished 
and my admiration for him continues to increase. 

As an academician, I should like to add a word about 
Robert Bork’s non-judicial writing, and more particularly 
to his view of the role of the academic contrasted with 
the role of a judge. In 1984, in footnote 5 of Dronenbura 
v. Zech . 741 F. 2d 1388, 1396 (D.C. 1984), he referred to 
views he had expressed "in academic life," adding that 
they were "completely irrelevant to the function of a 
circuit judge." By the same token, where precedent 
controls, writings of the academician—however 
provocative—must and, I believe, will give way. (The 
Zech case, it will be recalled, was the one that developed 
after "a 19-year-old seaman recruit" chose to break off 
his homosexual relationship with "a 27-year-old petty 
officer," with evidence of homosexual activity taking 
place in the barracks. Judge Bork refused to find a 
constitutional bar prohibiting the Navy from discharging 
the petty officer.) 

I should like to associate myself with the analysis 
and the conclusions of Professor Daniel J. Meador, 
presented to this Committee, as extracted in the press, 
suggesting objective criteria that would be appropriate 



2940 


- 5 - 


for the Committee to apply and concluding that Robert H. 
Bork merits confirmation. I concur emphatically in his 
conclusions. 

I was present when Justice John Paul Stevens, 
addressing a very large group assembled at the Judicial 
Conference of the Eight Circuit this summer, quoted with 
enthusiastic approval from one of Judge Bork's opinions, 
and warmly applauded his nomination. It was a moving 
moment. I count myself privileged to be allowed to join 
in the chorus of lesser voices recommending confirmation. 



2941 


Senator DeConcini. Thank you very much. Mr. Oaks. Would you 
please rise and raise your right hand. 

Do you solemnly swear the testimony you are about to give to 
this committee is the truth, so help you God? 

Mr. Oaks. I do. 

Senator DeConcini. Be seated. 

Mr. Oaks. I understand that you wish me to proceed at this 
point? 

Senator DeConcini. Yes, sir. It is your turn and you have 5 min¬ 
utes. Your full text. If it is more than that, we will print in the 
record as if given, and if you would please summarize, or whatever 
you care to say, sir. 

TESTIMONY OF DALLIN H. OAKS 

Mr. Oaks. Thank you. I welcome this opportunity, members of 
the committee, to testify in support of the confirmation of the Hon¬ 
orable Robert H. Bork. 

I have known him for 31 years, carefully observing his work as a 
lawyer, a law professor, and a constitutional scholar. 

My testimony is based on this long acquaintance and on my 30 
years 'experience in the legal profession. My views are personal. I 
do not speak for my church or for any other organization. 

Since my evaluation is a personal one I should state my own ex¬ 
perience. I served for 1 year as a law clerk to Chief Justice Earl 
Warren of the U.S. Supreme Court. 

Like Judge Bork, I am a graduate of the University of Chicago 
Law School. Like Judge Bork, I worked as an associate in the Chi¬ 
cago law firm then known as Kirkland, Ellis, Hodson, Chaffetz & 
Masters. 

During my 3 Vi years with this law firm I worked closely with 
Robert H. Bork. 

I left the Kirkland firm in the fall of 1961 to become a professor 
at the University of Chicago Law School, where I served for 10 
years. During my last year at Chicago, I also served as executive 
director of the American Bar Foundation. 

From 1971 to 1980, I was president of Brigham Young Universi¬ 
ty. Then I served as a Justice of the Utah Supreme Court for over 
3 years. 

I resigned from the court to accept my present calling as a 
member of the Council of the Twelve Apostles of the Church of 
Jesus Christ of Latter Day Saints. 

I am familiar with the scholarly work of Professor Robert H. 
Bork. 

In my judgment, Robert H. Bork would make an outstanding 
Justice on the U.S. Supreme Court. He is highly intelligent. He is 
the product of a superior legal education. 

Through long experience in different areas of the profession, he 
has proven his excellence in the kind of legal practice, scholarship, 
and public service, that has traditionally fitted persons for the ef¬ 
fective performance of high judicial office. 

He is a man of integrity who has adhered to the highest stand¬ 
ards of the legal profession. 



2942 


I have been saddened as some respected persons and organiza¬ 
tions have characterized Judge Bork as an extremist, an enemy of 
legal rights that are vital to some citizens, and valued by all. These 
assertions are not well founded and do not serve the cause of 
thoughtful discourse on the qualifications of this nominee. 

If Judge Bork’s legal philosophy is so extreme, or his judicial per¬ 
formance so at odds with our constitutional tradition, how it is that 
he has written more than 100 majority opinions for the U.S. court 
of appeals without having a single reversal by the U.S. Supreme 
Court? 

An appellate judge needs a coherent philosophy about the respec¬ 
tive roles of the judicial branch and the legislative branch. Judge 
Bork has such a philosophy. He has articulated his ideas of judicial 
restraint with a clarity that is admirable, and certainly not self- 
serving. 

I agree with his philosophy. It is essential to the preservation of 
our freedoms, and our Constitution, that our laws be made by law¬ 
makers who are responsible to the people through election. Life- 
tenured judges should limi t themselves to the interpretation of the 
laws and the Constitution, which is their constitutional function. 

Judicial restraint also requires a judge to be respectful of prece¬ 
dent, even when it runs counter to his preferences and his own ju¬ 
dicial philosophy. 

As this committee knows from its extensive interrogation of 
Judge Bork, he is also sensitive to that important and sometimes 
countervailing requirement of judicial restraint. And a judge must 
be open minded. Judge Bork is. 

He has the kind of humane qualities we need in judges whose de¬ 
cisions affect not only public institutions, but also the most inti¬ 
mate aspects of the private life of our citizens. 

When we were young lawyers together in Chicago, I felt his con¬ 
cern. I would like to illustrate that with this example. 

During the late 1950’s, the period when Robert Bork and I were 
employed in the Kirkland firm in Chicago, I observed that the pat¬ 
tern of employment among large firms in that city was for Jewish 
law graduates to be employed by Jewish firms, and for non-Jewish 
graduates to be employed by non-Jewish firms. 

The Kirkland firm was part of that pattern. In the early months 
of 1957, my classmate, Howard G. Krane, who was Jewish, was 
interviewed by the Kirkland firm. Considered on his merits, Krane 
would clearly have received an offer. He was a top graduate with 
law-review experience, and he showed every promise of being an 
outstanding lawyer. 

Despite this he was brushed off and not offered employment be¬ 
cause he was Jewish. When Bork learned about Krane’s rejection 
he was incensed. Even though only an associate, without any 
formal voice in the hiring decisions of the firm, Bork determined to 
try to use the case of Howard Krane to change the firm’s practice 
of excluding Jewish graduates from employment. 

He talked to me about this intention. I assured him that Krane 
was an outstanding prospect whose credentials would make a good 
test case for his effort. I promised my support. 

Bork went to the hiring partners of the law firm and took a 
strong position, that their failure to hire Krane because he was 



2943 


Jewish was not only extremely shortsighted for a firm that was in¬ 
terested in top talent. It was also deeply offensive to some young 
lawyers the firm was obviously grooming for future leadership. 

Two of these partners told me what had happened and asked for 
my position, I supported Robert Bork’s position and Howard Krane 
was hired. 

Today, Krane is a managing partner of that firm, Kirkland & 
Ellis, one of the nation’s most prestigious. 

I believe that Robert H. Bork will be an outstanding Justice on 
the U.S. Supreme Court and I urge that he be confirmed. 

[Prepared statement follows:] 



2944 


Dallin H. Oaks 
Testimony before 
the Senate Judiciary Committee 
on the Proposed Confirmation of Judge Robert H. Bork 
September 28, 1987 

I welcome this opportunity to testify in support of the 
confirmation of the Honorable Robert H. Bork. I have known him 
for 31 years, carefully observing his wor< as a lawyer, a law- 
professor, ana a constitutional scholar. My testimony is based 
on this long acquaintance ano on my 30 years’ experience in ti.e 
legal profession. My views are personal. I do not speak for 
my Church or for any otner organization. 

Since my evaluation is a personal one, I should state my 
own experience. I served for one year as a law clerk for Chief 
Justice Earl Warren of the United States Supreme Court. Like 
Judge Bork, I am a graduate of The University of Chicago Law 
School, and like Judge Bork I worked as an associate in the 
Chicago law firm then known as Kirkland, Ellis, Hodson, 
Chaffetz, and Masters. During my three and one-half years with 
this firm, I worked very closely with Rooert H, Bork. 

I left the Kirkland firm in the fall of 1961 to become a 
professor at The University of Chicago Law School, wnere 1 
served for ten years. {Bork left that firm m 1962 to become a 
professor at Yale.) During my last year at Chicago, I also 
served as the Executive Director of tne American Bar 
Foundation. From 1971 to 1980 I was the President of Brigham 
Young University, also teaching in its new law school. I 



2945 


served as a Justice of the Utan Supreme Court for over tnree 
years. I resigned from tne Court to accept my present calling 
as a member of tne Council of the Twelve Apostles of The Church 
of Jesus Christ of Latter-day Saints. During my work in tne 
legal profession, I have studied the books, articles, and 
speeches of hundreds of legal scholars and judges. I am 
familiar with the scholarly work of Professor Robert H. Bork, 
and have used it in my own scholarship. 

In my judgment, Robert H. Bork would make an outstanding 
Justice on the United States Supreme Court. He is highly 
intelligent. He is the product of a superior legal education. 
Through long experience in different areas of tne profession, 
he has proven his excellence in the kind of legal practice, 
scholarship and public service tnat has trauitionally fitted 
persons for the effective performance of high judicial office. 
He is a man of integrity who has adhered to the highest 
standards of the legal profession. 

I have been saddened as some respected persons and 
organizations have characterized Judge Bork as an extremist, an 
enemy of legal rights that are vital to some groups of citizens 
and valued by all. These assertions are not well founded and 
do not serve the cause of thoughtful discourse on the 
qualifications of this nominee. If Judge Bork's legal 
philosophy is so extreme or his judicial performance so at odds 
with our constitutional tradition, how is it that he has 

written more tnan a hundred majority opinions for tne United 



2946 


-3- 


States Court of Appeals without having one single reversal by 
the United States Supreme Court? 

An appellate judge needs a coherent philosophy about the 
respective roles of the judicial branch and the legislative 
branch. Judge Bork has such a philosophy. He has articulated 
his ideas of judicial restraint with a clarity that is 
admirable and certainly not self-serving. I agree with his 
philosophy. It is essential to the preservation of our 
freedoms and our constitution that our laws be made by 
lawmakers who are responsible to the people through election. 
Life-tenured judges snould limit themselves to the 
interpretation of the laws and the Constitution, which is their 
constitutional function. 

Judicial restraint also requires a judge to be respectful 
of precedent, even when it runs counter to his preferences and 
his own legal philosophy. As this committee knows from its 
extensive interrogation of Judge Bork, he is also sensitive to 
thar important and sometimes countervailing requirement of 
judicial restraint. 

A judge must be open-minded--willing to weigh arguments 
that bear against his previous opinions and flexible enough to 
modify his prior positions, even his public ones, in response 
to new facts or more mature reflection. I have seen that 
open-mindedness and flexibility in Robert H. Bork. Some have 

characterized his willingness to change his mind as 



2947 


-4- 

"confirmation conversion." The facts on his character and his 
public record snow otherwise. He is an open-minded 
intellectual, not an expedient climber. 

Robert H. BorK has the kina of humane qualities we need in 
judges whose decisions affect not only public institutions but 
also the most intimate aspects of the private life of our 
citizens. When we were young lawyers together in Chicago, I 
observed that he was a gooa nusoand and father. I also felt 
nis concern tnat tne content and administration of tne law oe 
such that it would serve the people as a whole, not just 
powerful special interest groups. 

I will conclude by telling the Committee how Robert Bork 
reacted in a circumstance that shows his character and his 
concern for the principles of non-discrimination that have 
played such an important part in the progress of this nation 
and its people in the last half-century. 

During the late 1950's, the period when Robert Bork ana I 
were employed by tne Kirkland firm in Chicago, 1 observed that 
the pattern of employment among large firms in tnat city was 
for Jewish law graduates to be employed by Jewisn firms and for 
non-Jewish graduates to be employed by non-Jewish firms. The 
Kirkland firm was part of that pattern. In the early months of 
1957, my classmate Howard G. Krane, who was Jewish, was 
interviewed by the Kirkland firm. Considered on his merits, 

Krane would clearly have received an offer. He was a top 



2948 


-s- 


graduate with law review experience and he showed every promise 
oE being an outstanding lawyer. Despite this, he was brushed 
off and not offered employment because he was Jewish. 

When Bork learned about Krane’s rejection, he was 
incensed. Even though only an associate, without any formal 
voice in the hiring decisions of tne firm, Bork determined to 
try to use the case of Howard Krane to change the firm's 
practice of excluding Jewish law graduates from employment. He 
talked with me about his intention. I assured him that Krane 
was an outstanding prospect whose credentials would make a good 
test case for his effort. I promised my support. 

Bork went to the hiring partners of the law firm and took a 
strong position that their failure to hire Krane because he was 
Jewish was not only extremely short-sighted for a firm that was 
interested in top talent. It was also deeply offensive to some 
young lawyers the firm was obviously grooming for future 
leadership. Two of these partners told me what had happened 
and asked for my opinion. I supported Robert aork's position, 
and Howard Krane was hired. Today Krane is a managing partner 
of that firm, Kirkland and Ellis, one of the nation's most 
prestigious. 

I believe that Judge Robert H. Bork will be an outstanding 
Justice on the United States Supreme Court. I urge that he be 


confirmed 



2949 


Senator DeConcini. Thank you, Mr. Oaks, and thank you, ladies 
and gentlemen. I have no questions prepared for you. We did not 
receive any of the statements here, quite frankly. That is not your 
fault because I understand some of you did not know when you 
were going to testify, but we have not received the statements. 

I do appreciate the time that you have spent here. Obviously 
some of your personal relations with Judge Bork are indeed impor¬ 
tant. Because one of the problems this Senator faces is I did not 
know Judge Bork when he was up here for confirmation before. I 
never met him. I have only met him and seen him here for five 
days, and there is no question to me that personally knowing 
anyone who is up for confirmation, or consideration for any posi¬ 
tion, is far better than not knowing him. 

I have had the benefit of knowing the other three nominees to 
the Supreme Court, and quite frankly, the decisions have been 
much easier for me to conclude, and who to ask. So I do not even 
know who to ask, and you have been asked and you have given 
your views and I appreciate that very much. 

The Senator from Utah. 

Senator Hatch. Thank you. It is my understanding that the Sen¬ 
ator from Wyoming has to leave, so I will defer to him. 

Senator DeConcini. The Senator from Wyoming. 

Senator Simpson. Thank you very much, Orrin, and thank you, 
Mr. Chairman. 

Well, indeed, it is certainly worthwhile hearing what you are 
telling us, and I know that some of the things you say you feel are 
repetitive, but the hammers of repetition are on the forge and have 
been for days here. A continual, a repetitive drumming about this 
man, always prefaced by the fact that he is just about the nicest 
guy they have ever met, and has not one shred of anything that 
would question his honesty or his integrity or his intellect. But. 
And then we hear it all, and always in the area of emotion, fear, 
guilt, or racism. It really is fascinating. 

So I remember there is a phrase in politics: “There is no such 
thing as repetition.” You can tell the same person 10 times how 
you feel on an issue, and on the 10th time they will tell you “I 
didn’t know you felt that.” That is the way it is in politics. 

But if you drum it long enough and get it sandwiched in your 
evening news, and then between the evening news and the prime 
time, and here is an ad by someone as respected as Gregory Peck— 
to get right specific—saying that this man is in favor of “these 
things” which are repugnant to us all, that is the kind of stuff you 
are getting in this. 

Too bad Gregory Peck did not read Judge Bork’s record. That is 
unfortunate and a little sad. So emotion will always triumph over 
reason, but reason will always persist, and when it comes down to 
when all the players are in this game, all 100 of us, reason will per¬ 
sist and we will get this man confirmed, because there is no reason 
not to, not one single one. 

I have approved others of the other faith, as everyone else has on 
this panel. Particularly, Mr. Oaks. I do not know how much more 
we could talk about Watergate, but it has almost reached the point 
of babble. 



2950 


You were involved there. From your testimony, you have known 
Judge Bork. That is in the record. We have heard a great deal 
about Judge Bork’s handling of the Watergate issues. You have 
given your firsthand knowledge about the involvement to others, 
not just here, but in other times. 

We know all about it. There is not anybody that does not know 
anything about it. When I speak about it, I am not denigrating 
what happened. I am just saying we all know what happened and 
we are all pleased with the result. Let’s move on. We never even 
brought it up in the two previous times when this judge was before 
this panel. 

But you recall that that was the occasion, it was a holiday week¬ 
end, and Judge Bork called you, did he not? 

Mr. Oaks. Yes, he did. 

Senator Simpson. And it must have been soon after the firing, 
momentarily, was it not, that he began to seek a new special pros¬ 
ecutor? Tell me, just quickly, what that is, and I do not have much 
time, so- 

Mr. Oaks. I think it was Monday, Senator. Bob Bork called me. 
We are long-time friends, as I have indicated. He said “I want some 
help getting a special prosecutor going.” 

He talked about the circumstances that he had been involved in, 
and about the stress he was under. He said he was calling from the 
office up in the Supreme Court. He did not have the use of his 
office in the Department of Justice, for practical reasons. 

He said “I am making all my own calls; I am even fussing 
around with the phone book to try and get all the numbers. This is 
just incredible.” It was just a few hours after the Saturday night 
massacre, as it is now called, and he was a friend in trouble; he 
was under a lot of stress. What he said was this: “I have got to get 
a Special Prosecutor going, somebody that the American public will 
trust, someone that will have instant credibility with everyone be¬ 
cause of his stature in the legal profession, and someone who is 
tough, because this is a tough job. You would not believe the kind 
of pressures there are here. It has got to be a man of integrity and 
toughness who can carry the job through.” 

He said, “I think a President of the American Bar Association 
would have the kind of instant credibility that I need for this job, 
but I do not know the men who have been President of the Ameri¬ 
can Bar Association, and I do not know which ones of them have 
the toughness and the other qualities that we have got to have to 
carry this job through.” 

“You know them.” He knew that I had been executive director of 
the American Bar Foundation and knew a lot of the Presidents of 
the ABA. He said, “You know them. Who can do that job? Who can 
we trust, and who is tough enough to stand up to the pressure and 
carry the job through for the benefit of this country?” 

And I mentioned Justice Lewis Powell, who was unavailable for 
obvious reasons. And I said the other man that is foremast in my 
mind for those credentials is Leon Jaworski. 

He said, “I don’t know him, but somebody else has mentioned his 
name.” 

And I said, “Well, you can take my word for it—he is the man 
who will do the job you want done.” 



2951 


And that was the essence of our conversation. 

Senator Simpson. And that conversation took place when? 

Mr. Oaks. To the best of my recollection, it was Monday morning 
following the Saturday. I say “to the best of my recollection” be¬ 
cause I cannot date it with precision to the nearest 24 hours. I 
know it was not Sunday, because I was in my office at Brigham 
Young University when the call came, and I was never there on 
Sunday. I think it was Monday morning when he called me. 

Senator Simpson. It was not Tuesday? 

Mr. Oaks. It is possible it could have been Tuesday, but it was 
not later. I think it was Monday because of the description he gave 
of the pressure he was under, and the call being from the Supreme 
Court office. He sounded to me like a man who was in semi-hiding, 
trying to pull his life together and measure up to his responsibil¬ 
ities, without knowing who he could depend on without having his 
office geared up, people he could trust, and so on. It was a stressful 
call, and I did what I could to help. 

Senator Simpson. Well, we have had so much here—sinister rela¬ 
tions to the fact he waited until public opinion pushed him along 
and these things, and so there was little delay, in any event, when 
he called you; that is obvious. 

Mr. Oaks. It was obvious to me. 

Senator Simpson. And he was probably out front of the White 
House on this one—which was pretty risky business for him. But 
again, that is the kind of distortion that we get in this game from 
end to end, and especially on Watergate, because that is stuff that 
repels us all. 

So the same old stuff, and I am glad you were there, and Lord 
knows what will happen to your testimony, but we will distort it in 
some way. 

Senator DeConcini. Thank you. 

The Senator from Vermont. 

Senator Leahy. Thank you, Mr. Chairman. 

I will be brief, because I know we have other people also waiting. 

Professor BeVier—and I am probably not the first person to mis¬ 
pronounce your name, am I- 

Ms. BeVier. No. I doubt you will be the last. 

Senator Leahy. You are knowledgeable about first amendment 
issues, and that is the area that I have discussed at some length 
with Judge Bork. Did you have any chance to review his testimony 
on first amendment issues before us? 

Ms. BeVier. Yes, I have looked at it. Senator Leahy. 

Senator Leahy. There appears to be a change in his position on 
Brandenburg v. Ohio, certainly from his 1970 writings until here. 
He described Brandenburg earlier as being fundamentally wrong, 
but in his testimony here, he thinks Brandenburg is right. 

How would you account for that change? 

Ms. BeVier. Well, I think that the best way to account for the 
change is to probably say—if it is a change, indeed—that what 
Judge Bork was doing by way of explanation of his present adher¬ 
ence to Brandenburg was attempting to speak to an issue that he 
had not thought through perhaps as a scholar. 

Brandenburg could be criticized by someone who took at one time 
a narrow view of the protection of the first amendment, because as 



2952 


you know, it does extend protection of speech so that advocacy of 
unlawful action is protected. So in that sense as a scholar, one 
might say Brandenburg is fundamentally wrong. 

When one begins, however, to think about what one has to do as 
a judge to protect the kind of speech we do care about, which is 
political speech, which all of us agree is at the core of the first 
amendment, which Judge Bork has never said was even vaguely 
unprotected, I think one can realize that- 

Senator Leahy. I am sorry. I did not understand. What was it he 
said was not unprotected? 

Ms. BeVier. Political speech. 

Senator Leahy. Political speech. I am sorry. I understood you to 
say “nonpolitical.” You said “political.” Okay. 

Ms. BeVier. If you begin as a judge to realize that what your job 
is is to protect the rights that clearly do exist, it seems that you 
can pretty easily begin to see that a rule like Brandenburg is neces¬ 
sary just to protect political speech, simply because it is so difficult 
in the context of situations in which speech might be prosecuted or 
punished- 

Senator Leahy. But he went well beyond again, a position that 
he has taken fairly consistently for a decade and a half, of calling 
Brandenburg fundamentally wrong and speaking of protection only 
of political speech. He did, following a series of questions here 
during the confirmation, considerably expand that view, did he 
not—and in fact, reject much of his earlier view—or do you see it 
that way? 

Ms. BeVier. Oh, no, I think that he did. I teach in the first 
amendment area, Senator Leahy- 

Senator Leahy. That is why I am asking you. 

Ms. BeVier [continuing]. Right, but what I want to preface my 
answer by saying to you is that the first thing I always tell my 
class is that the first amendment is a lot harder to understand 
than people realize, in terms of how it technically plays out as a 
series of legal rules. 

But first of all, there are two things—one, what Brandenburg 
does as a rule to protect unpopular speakers in potentially incendi¬ 
ary situations or situations in which they might be subject to perse¬ 
cution for having unpopular views. That is one sort of first amend¬ 
ment kind of situation. 

Another is the theoretical principle of whether or not the first 
amendment extends only to political speech. And on that, I think 
Judge Bork’s views, in the fire of the intellectual debate to which 
those ideas have been subjected, have undergone a change; he has 
simply acknowledged his error and expanded his willingness to pro¬ 
tect speech. 

Senator Leahy. Thank you. 

Thank you, Mr. Chairman. 

Senator DeConcini. The Senator from Utah. 

Senator Hatch. Thank you, Senator DeConcini. 

President Oaks, let me just ask you a few questions. I do want to 
acknowledge your commendable record. You went over some of the 
things that you did before you went to your present ecclesiastical 
position, but I am one who believes that had you stayed in the pri¬ 
vate sector, so to speak, you may very well have been one of the 



2953 


nominees of the President yourself, and I think with an awful lot 
of support from all over the legal community as well as elsewhere. 

Let me just say this, that you have indicated you have known 
Judge Bork professionally and personally for quite a few years, 
ever since law school. And as you know, Judge Bork has been at¬ 
tacked here, in the press, in television commercials, special interest 
group reports, full-page ads in the newspapers, as an unbending, 
rigid, ideologue. 

Now, do you have any reason, having known him as long as you 
do, to believe that any of these accusations are true? 

Mr. Oaks. I do not believe any of those accusations are true. I 
believe that Robert Bork, from my long knowledge of him and ob¬ 
servation of his record and his work, is an open-minded intellectu¬ 
al, not an expedient climber. He has changed his mind, but any 
scholar worth his salt is going to change his mind on things. 

Senator Hatch. Judge Bork has said again and again that judges 
should stick to interpreting the laws before them, whether it be 
constitutional or statutory, according to the meaning originally 
given to that particular law by its drafters, and not read into the 
law his or her own personal preferences or policy preferences, if 
you will. 

Do you think this is way outside of the mainstream of American 
jurisprudence? 

Mr. Oaks. No. 

Senator Hatch. All right. What do you see as the dangers of ju¬ 
dicial activism, where judges do read their own policy preferences 
into statutes and into the Constitution? 

Mr. Oaks. It departs from the principle that I stated in my testi¬ 
mony, that the law ought to be made by lawmakers who are re¬ 
sponsible to the people through the process of election. It tends 
toward a lawless society, or a government of men and women, 
rather than a government of laws and legal rules and predictable 
outcomes. 

Senator Hatch. Do you think that the Founders ever meant that 
the judicial branch should practice that kind of activism or to exer¬ 
cise that kind of power? 

Mr. Oaks. Not in my view. 

Senator Hatch. Well, thank you. I appreciate having your testi¬ 
mony. I was interested in your comments about Judge Bork and his 
worries , and concerns about resolving his dilemma of getting some¬ 
body appointed who would be of stature, of such stature that the 
American people would realize that he, as the acting head at that 
particular point, was going to go ahead and do what was right with 
regard to Watergate. And I think that history speaks well of him 
in that regard, because by appointing Jaworski, of course, history 
shows that Jaworski did a terrific job of resolving the whole Water¬ 
gate affair. And I think your testimony is crucial on that, and I 
was interested in hearing it, because I know of your reputation, I 
know you personally very well, and I know that people can believe 
every word you say on any subject. So I was pleased to be able to 
hear that here today. 

Let me go to Professor Monaghan, if I can. 



2954 


There has been considerable debate here on this committee over 
Judge Bork’s approach to the equal protection clause and what he 
calls the reasonable basis test. 

Now, we have been told by some that the reasonable basis test 
that he outlined is just the old rational basis test with a new name, 
and that under this test, most instances of sex discrimination 
would be sustained—at least, that is the implication by certain 
members of the committee as well as others outside. 

Now, Judge Bork on the other hand says it is not the same as 
the old rational basis test, and that under his analysis, all govern¬ 
ment sex distinctions or classifications would be impermissible, 
except for one or two that he enumerated; he could not think of 
any others. 

Would you please give us your views on this issue? 

Mr. Monaghan. Well, I think that part of the difficulty that 
Judge Bork has is that historically the rational basis test has been 
manipulated by judges. Nobody could tell you what the structure of 
the rational basis test is. 

Recent Supreme Court cases have proffered a much tougher ra¬ 
tional basis test. They do not look for simply a logical connection. 
WTiat they require is a plausible connection. 

I think that the case that was referred to by Senator Specter is a 
good example of that, in his examination of Judge Bork. I think 
that under my view, most sex discriminations would be invalid 
under the 14th amendment. They would be unreasonable given 
contemporary social standards. But I might point out to the com¬ 
mittee that one of the difficulties that somebody has who takes the 
14th amendment seriously is that the 14th amendment itself con¬ 
tains a sex discrimination, in its body, in section 2. I noticed that 
one set of witnesses that came down here to testify, consisted of 
four women. No one of them seemed to know that the second sec¬ 
tion of the 14th amendment itself contains a sex discrimination. 

But I do think it is fair to say that under Judge Bork’s view and 
under my view, the rational basis test—I would call it the reasona¬ 
ble basis test—would condemn sex-based discriminations. 

Senator Hatch. I notice that my time is up. I would like to con¬ 
tinue this panel, but I will just wait for the next round. 

Senator Leahy. I understand that you would want another 
round, which you will have, of course, and will yield now to Sena¬ 
tor Heflin. 

Senator Heflin. Professor Levin, I particularly want to welcome 
you. You have been a friend of mine for a long time, and are now 
professor emeritus at the University of Pennsylvania Law School; 
but your great service as director of the federal judicial center was 
remarkable. That is a center that deals with the education of 
judges, research, and other aspects of our federal system. And I 
suppose really, when I get to thinking about it, you have probably 
testified before this Senate Judiciary Committee in the last 7 or 8 
years more than any other living human being, I believe. You have 
been here quite frequently. But I am delighted to see you. 

I, of course, have listened to questions and asked questions, and 
we have rehashed and rehashed and rehashed practically the same 
thing. However, I came across a speech of Judge Bork r s over the 
weekend that I had not seen, and I do not believe it has been in- 



'2955 


quired about. This was a speech at the Pound Revisited Conference. 
I believe you were there, and I was there—back around 1976 in St. 
Paul. The speech was entitled, “Dealing with the Overload in Arti¬ 
cle III Courts.” I realize you have not seen this piece, but Judge 
Bork, I think, has spent a good deal of time trying to figure out 
ways of meeting the problem of the overload of the courts, and at 
that time had come up with some novel ideas. Some, I agreed with; 
some, I did not. Of course, the one being discussed the most at that 
time was diversity cases, removing them from the jurisdiction of 
the federal court, which in his speech, I believe he thinks would be 
a good idea. I might differ with him on that. 

He then had some types of cases that he thought could be han¬ 
dled by an article I judge as opposed to an article III. Of course, the 
public might not understand, but article III are lifetime, Presiden- 
tially appointed, and Senate-confirmed judges. Article l’s are those 
that are not of that type. And there are some questions about what 
they can consider and not consider. 

But involved in it, he said the type of class or category of cases 
that he had in mind that could be perhaps handled by the article I 
judge, the administrative law judge, rather than the article III 
judge, and therefore take that work load away from the article III 
courts, would be such cases as the Social Security laws, National 
Environmental Policy Act, the Clean Air Act, the Water Pollution 
Control Act, Consumer Product Safety Act, Truth-in-Lending Act, 
Federal Employees Liability Act, Food Stamp Act and other exam¬ 
ples could be found. I suspect that cases under the Mine Safety Act 
and the Occupational Safety and Health Act would qualify. 

Well, of course, that is largely a matter that is left to the Con¬ 
gress to make its determination as to what type of case they have. 
But I do not believe anything has moved relative to that concept. 
In your experience with Judge Bork, how do you classify him in 
the area of the administration of justice—he would become a part 
of the Judicial Conference, I suppose, or at least could become part 
of the Judicial Conference of the United States, and then of course 
would review the work of the Judicial Conference of the United 
States. How would you describe him in this area of administration 
of justice and towards ideas? 

Now, I notice that he is against the National Court of Appeals; 
you are for it, and I am for the National Court of Appeals. But give 
us your overall view relative to that from your perspective. 

Mr. Levin. Thank you, Senator Heflin. I appreciate those warm 
remarks, and I am pleased for this opportunity. 

In my submitted statement, which apparently has not arrived, I 
made some reference to the committee appointed by Attorney Gen¬ 
eral Levi to deal with some of these problems and make recommen¬ 
dations. And the speech at the Pound Conference by Judge Bork 
grew out of that committee, which he chaired, includes some chal¬ 
lenging ideas. Some of those ideas, let me say, have resurfaced now, 
and there is increased attention to them. Which ones are good, 
which ones are viable, will depend on a number of things, but I 
come to the summary. I think Judge Bork has been passionately 
dedicated and devoted to the desire to see that the federal judicial 
system works not only in theory but in fact, to the advantage of 
the disadvantaged. I think that is one of the things that concerned 



2956 


him about the amount of time and effort that goes into these Social 
Security appeals, not only from the perspective of the article III 
judges, but of the litigants. 

I think he has been creative, I think he has been dedicated to try 
and see improvements. And over the years, I must say, my respect 
for him even on things on which we disagree has increased rather 
than diminished. At times, I am inclined to think he is more main¬ 
stream on some of those things than I have, although I wish it 
were changed around, in terms of the votes. 

He has been just superb in that area, and no matter what he 
gets involved with formally should he be confirmed, the influence 
of a Justice on the whole system could be very significant. I think 
there is much laudable in his record to date in that area. 

Senator Heflin. Thank you, sir. 

Senator Leahy. The Senator from South Carolina; did you have 
any questions of the gentlemen? 

Senator Thurmond. I am going to yield temporarily. 

Senator Leahy. The Senator from Pennsylvania. 

Senator Specter. Thank you, Mr. Chairman. 

Professor Monaghan, I was interested in your comment that you 
had talked to Judge Bork prior to the time that he came here and 
that you had insights into the views that he held on constitutional 
law. And I would be interested to know if you had discussed with 
him at any occasion prior to his coming here—if you care to tell us; 
I do not wish to pry into any conversations which you might con¬ 
sider confidential; I know they are not privileged, but if you have a 
view that they are confidential, I would not want to pry—but I am 
interested to know, again, if you care to tell us, whether you had 
discussed with him a view that equal protection of the law, for ex¬ 
ample, applied beyond race, applied beyond the ethnic consider¬ 
ation prior to the time he came here a week ago Tuesday. 

Mr. Monaghan. I have had, in the last 2 years, at least four con¬ 
versations with Judge Bork at some sustained length about law. 
One of those conversations took place after his nomination, at 
which point I was invited down to discuss the subject of constitu¬ 
tional law with him, and he was a captive audience, so I just ham¬ 
mered him at that point. 

But the matter to which you refer, it is very curious, but I can 
tell you the exact date on which it occurred and even the hour on 
which it occurred—April 15 of this year at a moot court at Colum¬ 
bia University Law School, sometime after 6 o’clock in the evening, 
at the bar. And the reason I know that is because I had just com¬ 
pleted an article on original intent, precedent, and the written Con¬ 
stitution, and I was explaining to Judge Bork how the paper had 
started. This was a subject of considerable interest to him. And I 
pointed out to him that I thought that Brown v. Board of Educa¬ 
tion was quite inconsistent with the original intent of the fram¬ 
ers—not a very fashionable view. 

And it was in that context that Judge- 

Senator Specter. You say it is not very fashionable? 

Mr. Monaghan. It is not a very fashionable view, although—— 

Senator Specter. Are you familiar with Judge Bork’s—well, I am 
sure you are—with his view that Brown v. Board is consistent with 
the original intent? 



2957 * 


Mr. Monaghan. Yes, right. That is right. It does not happen to 
be my view. 

And I might point out that I opened the article by quoting a 
statement from Larry Tribe along that line. ‘“It is simply a fact 
that those who wrote and ratified the 14th amendment believed 
that it would permit racial segregation in the public schools.’ So 
states Professor Tribe.” And I think that that is the fact. 

Well, at this point. Judge Bork threw up his hands and said that 
it is far too late in the day to take that kind of a position, and in 
fact, at that point I said to him yes—just in substance—that, yes, 
the 14th amendment must be understood to condemn the equal 
protection clause, any unreasonable legislation, a proposition in 
which he acknowledged yes. 

And this is a- 

Senator Specter. Well, that is in a racial context, without- 

Mr. Monaghan. No, no. This was meant generally. He made the 
statement generally, any unreasonable classification. 

Senator Specter. Well, did you discuss the applicability of equal 
protection to women? 

Mr. Monaghan. No. The conversation at that point ended, on 
that subject, and moved on to something else. 

Senator Specter. Well, I do not know, obviously, the full extent 
of the conversation, but to the extent that you have described it so 
far, it does not pick up with specificity the application of equal pro¬ 
tection to illegitimates, for example, or to indigents. 

Mr. Monaghan. That is right, yes; I agree with that. 

Senator Specter. I would be interested to know if you ever had a 
conversation with him where he said that his view was that equal 
protection did apply to those categories. 

Mr. Monaghan. No. Just the general reasonableness classifica¬ 
tion, and that is what I think his view is. 

Senator Specter. Professor Levin, you made the comment that 
you believe that Judge Bork would follow precedent, contrary to 
any of his academic writings, in the event there was any conflict. 

I do not know if you have had an opportunity to hear some of the 
discussions we have had on the issue illustrative, say, of the clear 
and present danger test, and Judge Bork has said that he is pre¬ 
pared to apply accepted law, but he has a philosophical disagree¬ 
ment with the clear and present danger test. And we moved 
beyond Brandenburg —and I know you know these cases like the 
back of your hand—we then talked about the Hess case. And when 
I then sought to summarize and say, well, then, you are committed 
to follow Brandenburg and Hess, he said, “No, I am not committed 
to following Hess. I consider Hess to be an obscenity case.” 

And I raise this line because the Supreme Court considered Hess 
to be a speech case, clear and present danger case, and Judge Bork, 
in some of his prior writings, had as well. 

The question that I have is, aside from academic writings—put 
those aside, as you have already testified to—where a man has a 
deep philosophical view—and Judge Bork has expressed very deep 
philosophical views—what is the reality, when the next case comes 
up on speech, clear and present danger, that the doctrine can be 
applied of Brandenburg, especially in the light of his questioning 
whether Hess is a clear and present danger test and whether he 



2958 


can apply the Holmes clear and present danger test to Hess? I 
would be interested in your views as to how he would function if 
confirmed as a Justice on that. 

Mr. Levin. Senator, let me, really because of my lack of compe¬ 
tence, not deal with the specific, but deal with what I think is a 
fair intendment, both of the question and what I get out of some of 
his judicial writings on this point- 

Senator Specter. That would be fine. 

Mr. Levin [continuing]. The Oilman case, for example. 

I think Judge Bork is strongly committed that once a value has 
been identified—and I think that is where precedent counts—to 
say to it, okay, we are going to apply what is needed in today’s 
world to make that value a reality, even though it encompasses sit¬ 
uations never intended earlier. And I think for myself—and I have 
a kind of confidence in this—that taking a particular approach, 
and particularly in first amendment, and particularly as I gather 
the whole spirit in which he wrote on that in the Oilman case, 
which divided the court of appeals so, I think he is dedicated to the 
importance of first amendment values. Having identified them, he 
then moves on to what is needed today to do it, 

I think he would take precedent in terms of this is things that 
the Court has agreed to protect. Now, I cannot speak for every, 
single situation that would come up, nor can any of us be assured 
of what might come. 

I think the basic values the man has, which include the impor¬ 
tance of precedent, I would feel far more confident about how he 
would proceed to develop these things than I could out of examin¬ 
ing the particular analysis of case A and case B and what would 
happen. 

I think there is a tremendous amount of intellectual integrity. I 
may have caught that bit of questioning on a car radio. I was tre¬ 
mendously impressed with it, I must say. I think some of the hear¬ 
ings have gone to new heights. But there is this tremendous—I de¬ 
tected there a kind of tremendous concern not to overstate, to be 
completely intellectually honest, and not to make a kind of mild 
commitment of any sort. And that is what I detected at the time, 
riding along the highway. 

Senator Specter. Thank you very much, Professor Levin. 

Senator Leahy. The Senator from Pennsylvania’s time is up. I 
will waive my second round of questioning and yield to the Senator 
from Utah, who had requested a second round. 

Senator Hatch. Thank you so much. I appreciate that, Senator. 

Let me go back to Professor Monaghan again, because I think it 
is important we establish some of these things, and I think you are 
really very fine to answer some of these questions. I have a lot of 
respect for you personally—and of course, all of you on this panel. 

Because Judge Bork does not favor giving one nonracial group 
more favorable protection than another, he has been accused of not 
covering women in his viewpoints. Can you explain the distinction 
between the coverage of the equal protection clause and the stand¬ 
ard of protection under the clause; and then would you answer this 
question: Would Judge Bork cover women? 

Mr. Monaghan. Well, the answer to the second question first is 
that, of course, he would cover women. As I understand Judge 



2959 


Bork’s protection analysis, he takes race as the core case, and he 
says if there is a racial classification, the Government must justify 
that by the highest standard known to the law. No racial classifica¬ 
tion is good at least if it disadvantages blacks. And I think it is a 
mistake to assume that Judge Bork has made up his mind on af¬ 
firmative action, but let me put that out of the way. 

If a racial classification burdens or disadvantages blacks, that is 
the core of the amendment. He is certainly right about that histori¬ 
cally. In the slaughterhouse cases, it was doubted that anything 
else was covered but racial classifications. But in any event, Judge 
Bork would then require that the justification be a compelling or 
overriding one. 

Now, he recognizes from that point on, as I recognize, as does the 
rest of the universe, that the equal protection clause can then be 
used against any other kind of a classification—-illegitimates, chil¬ 
dren, women—but the standard drops at that point; the standard 
drops to the reasonable basis standard, which is to say that any 
classification that hurts anybody has to be justified by the Govern¬ 
ment. The Government must show it rests upon some reasonable 
basis. And that in a nutshell is, I think, Judge Bork’s view. 

I do not really understand why it is that Senator Specter thinks 
there is a real problem about what Judge Bork will do with 
women. Of course, they are within the ambit of the amendment. 

Senator Hatch. That is interesting. Professor Monaghan. Judge 
Bork has said that judges who believe in original intent are par¬ 
ticularly in need of a strong belief in precedent, or theory of prece¬ 
dent of stare decisis. Do you agree with that? 

Mr. Monaghan. Yes. I have a 96-page paper here on that point; 
yes, I do. I think the fact is that there has been a great deal of de¬ 
parture from original intent. There cannot be any judge in Amer¬ 
ica whose only analytical construct is original intent. He or she 
must take into account, even if you are predisposed toward original 
intent, as I am, you must take into account the fact that history 
counts; so you have to have a theory of precedent, also. 

Senator Hatch. Profesor, define “judicial activism” for us. 

Mr. Monaghan. Well, it would be—I guess I could put it to you 
in these terms. Judge Bork and his critics agree on a great many 
things. Judge Bork and his critics both agree that the rights that 
are secured in the Constitution have to be enforced. These are fun¬ 
damental rights. The Government can only interfere if there is an 
overriding justification for the interference. That is freedom of reli¬ 
gion, freedom of speech. 

Judge Bork and his critics agree on a second proposition, namely, 
that all Government action that hurts anybody has to be justified, 
even if no fundamental right is involved, by a reasonable basis, a 
rational justification for the Government’s action. 

Where Judge Bork and his critics divide is the extent to which it 
is proper for judges to themselves write a second Bill of Rights, be¬ 
cause once the judges go outside the Constitution and say some¬ 
thing is a fundamental right, that means it cannot be interfered 
with by the Government unless there is an overriding justification. 

I will give you an example of what Judge Bork objects to, and as 
a matter of fact this committee—if you do not mind my saying so— 
if this committee would read some of the work of Judge Bork’s crit- 



2960 


ics, rather than Judge Bork, I think it would help illuminate who 
is in the mainstream and who is not. 

But let me- 

Senator Hatch. Boy, do I agree with that. 

Mr. Monaghan. Let me identify what some of his critics—and 
these are only people who have testified here—have to say about 
the judges' role. 

Now, these critics fundamentally would convert the 14th amend¬ 
ment into a seminar on political philosophy. And I have written 
this because I once wrote an article called “Our Perfect Constitu¬ 
tion” in which I catalogued some of the people that neither Judge 
Bork nor I agree with—although I want to say by way of preface, I 
would confirm all of these people, although I would appoint none of 
them. 

Professor Tribe elaborates—this is the way Professor Tribe starts 
his textbook. He is not content simply to describe the Constitution. 
He starts in an avowed effort to construct a more just constitution¬ 
al order. Professor Tribe elaborates a wide range of equality and 
autonomy rights. 

His colleague, Professor Michelman, has devoted much of his- 

Senator Hatch. That does point up Professor Tribe fairly well. 
He is a very, very activist, very, very intelligent, bright guy; there 
is no question, but there is no question he is an activist. 

Mr. Monaghan. Yes. And with no devotion to original intent, I 
might add. 

Senator Hatch. There is no question about that. 

Mr. Monaghan. Although in fairness to Professor Tribe, he 
would deny that. 

Senator Hatch. Yes, he would. 

Mr. Monaghan. Professor Michelman is an even more interest¬ 
ing case. He has devoted most of his academic career to cementing 
the union between the distributional patterns of the welfare state 
and the Federal Constitution. And then it goes on. But I want to 
get a few people in particular so that you can see the gap between 
then and Judge Bork. 

Professor Fiss, who testified against Judge Bork, argues that the 
court should give, “concrete meaning and application to those 
values that give our society an identity and inner coherence.” 

Now, the notion that judges of the Supreme Court are selected 
and have the competence to do that, five elderly judges—tomorrow 
you will hear testimony, apparently, from Professor David Rich¬ 
ards of New York University Law School. He argues that the Court 
should apply the contract theory and moral theory of Professor 
Rawls’ “A Theory of Justice.” Professor Rawls is a professor at the 
Harvard School of Philosophy. So far as I know, he was not at the 
Convention; he did not show up at the 14th amendment debates 
either. 

So what you find here is, on the one side, people who fundamen¬ 
tally think that the 14th amendment is a platform for political phi¬ 
losophy. And on the other hand you have a whole category of 
people who think that the 14th amendment has to be construed in 
accordance with its historical purpose. 

I do not understand how these writers, such as Professor Fiss can 
excommunicate the rest of us. He is hurling anathemas at us. He is 



2961 


on one side of the stream, and we are on the other side of the 
stream. But until today, I did not realize there was an orthodoxy. 

Senator Hatch. Well, let me just say this. Professor. You say 
that you have never in your life voted for a Republican. 

Mr. Monaghan. That is right. I voted for Senator Kennedy three 
or four times—but only once at every election. [Laughter.] 

Senator Hatch. WeU, your political preferences are obviously lib¬ 
eral; is that a fair way of categorizing it? 

Mr. Monaghan. I like to consider myself a liberal Democrat, yes. 

Senator Hatch. Okay. Then how in the world can you be opposed 
to judicial activism, with all these leading lights on this committee 
who are liberal? 

Mr. Monaghan. Well, it was an easy—and that really goes to 
the root of the matter—but it was easily understood when I went 
to law school that politics was one thing—one could be a liberal or 
one could be a conservative—and that constitutional law was some¬ 
thing else again; and neither the liberals nor the conservatives 
owned the Constitution. 

But I will tell you what is going on in the law schools. Increas¬ 
ingly among liberal academics, there is a distrust of politics. The 
liberals have- 

Senator Hatch. It is not limited to them, bv the way. 

Mr. Monaghan. No, no, no. I understand that. Most of this objec¬ 
tion could be turned against conservatives, also. 

Senator Hatch. True. 

Mr. Monaghan. But the liberals, having decided that it is diffi¬ 
cult to win elections, have decided that they might as well—who 
needs an election if you have control of the Supreme Court, basical¬ 
ly? 

So I think that in some sense. Judge Bork—if I may make one 
more comment, Senator. There is a book by Stephen Macedo called 
“The New Right Versus the Constitution.” 

Senator Hatch. I have seen that. 

Mr. Monaghan. And I open this book, and I read this book, and 
it is an attack on—guess who—Judge Bork as an example of the 
new right. It turns out that Judge Bork's great defect is that he 
believes in democratic government. Judge Bork in this book is 
being criticized by the far right for showing too much deference to 
the democratic processes. Judge Bork is criticized from the far 
right, from the left. 

I would like to think that he is at least in the mainstream. 

Senator Hatch. Professor, Judge Bork has said that he believes 
that laws should be interpreted to give effect to the understanding 
of the lawmakers themselves. Some people have told us that this 
interpretation is wholly inadequate, or at least inadequate. 

Now, could you lay out for us some of the alternative methods of 
interpretation? And if a judge does not look to the original under¬ 
standing of the law or of those who made the law, then what does 
he look to? 

Mr. Monaghan. Well, I think I will give you a short answer 
rather than go into the theory of language philosophy. But I agree 
with the thrust of the question, that the judge is supposed to obey 
the intention of those who enacted the law; I agree with that. The 
trouble with the theory that—you know it is very easy to take 



2962 


shots at original intent theory and nobody knows that any better 
than I do, and in this piece that I have written, I have given up a 
lot of ground in this. 

The same thing is true of people who think you do not rely on 
original intent. You can take an awful lot of shots at those, and 
that is what happens in the law reviews. 

There are two big tugs of war, like two warships out there firing 
at each other. Both can hit the other side, and neither seems to be 
able to—— 

In fairness, original intent is a theory that will not solve the 
problems, either. Neither will original intent and stare decisis solve 
the problems. 

The point to see is that there is not any theory that will solve all 
these problems, and the critical question then is not whether Judge 
Bork is right in having some philosophy, but the question is wheth¬ 
er he is in the mainstream. 

And in that regard, he has shown a capacity to change. The 
short answer to Senator Leahy’s question was—oh, Senator Leahy 
is no there—is that this 1971 free speech article is a very bad arti¬ 
cle. 

And Judge Bork has been pounded by his critics on it, and he 
has changed his mind. 

Senator Hatch. I remember where—wasn’t it Professor Tushnet 
who criticized the explicit 35-year-old eligibility requirement of the 
Constitution, and said all you need is to establish that he or she is 
of sufficient maturity, even though the Constitution is absolutely 
explicit on how old the President has to be. 

Well, I do not mean to take more time but I really would like to. 

Senator DeConcini. Senator—yes, it is. The Senator from South 
Carolina has one question but he says he is more than happy to 
wait until the Senator from Utah is finished. 

Senator Thurmond. You can go ahead. It is all right with me. 

Senator DeConcini. So the Senator from Utah can continue. 

Senator Hatch. This is a terrific- 

Senator DeConcini. Although would the Senator yield just be¬ 
cause— 

Senator Hatch. I sure would. I would be delighted to, any time, 
Senator DeConcini. 

Senator DeConcini. Professor Monaghan mentioned something 
of interest. Did I misunderstand you? You said that there is a 
group of liberal law professors trying to rule this country through 
the Supreme Court, or did I- 

Mr. Monaghan. Oh, no, no. No, no. 

Senator DeConcini. What did you say? 

Mr. Monaghan. No, no, nothing so grandiose as a conspiracy. 
No. I think that what has happened—and I think you see this in 
the work of people—of various of Judge Bork’s critics. 

I think what you see is among the liberals—you see, it used to be 
interesting to join two words—liberal Democrats. Now in fact that 
is not one idea: it is two ideas. 

And there has been an increasing tendency among academic lib¬ 
eral Democrats to emphasize the values of liberalism as against the 
values of democratic government. 



2963 


Senator DeConcini. But is this relative to what your statement 
was about liberal law professors trying to govern through the Su¬ 
preme Court? Or did I just totally misunderstand what you said? 

Mr. Monaghan. Well, if I conveyed that impression that is—I 
misspoke. 

Senator DeConcini. What was the reference you were making 
about liberal law professors trying to change the Constitution 
through the Court? 

You did not say that? 

Mr. Monaghan. No —I am sorry. Maybe I can respond in this 
fashion. 

Senator DeConcini. I just missed it. I am sorry. 

Mr. Monaghan. Well, I think it is I who missed it and misspoke. 

I would say that there are a group of liberal law professors who 
believe that original intent theory, such as I espouse it, or as does 
Judge Bork, is totally inadequate, and the role of precedent is total¬ 
ly inadequate, and that what the 14th amendment was designed to 
do, or should be read to do—one of the two, and they take two dif¬ 
ferent sides—is to authorize the judges of the Supreme Court to de¬ 
velop sound conceptions of moral philosophy- 

Senator DeConcini. On anything? 

Mr. Monaghan. Well, they would not go that far. That would be 
to characterize their view. On what they would describe as funda¬ 
mental issues. 

And then they would take the position that the Court should 
impose those against the contrary preferences of the legislation. 

And if you read the law reviews today, what you find is a great 
deal of discussion about moral philosophy. In Professor Fiss, and in 
Professor Perry, you find people who are trying to establish a 
moral vision and there is a great deal of dispute between them. 

Now that is a perfectly legitimate conception of what constitu¬ 
tional law is all about in my view, but it is not the only one. 

Senator DeConcini. You are saying that is legitimate, particular¬ 
ly in light of the law review, or the environment of a law school 
and a professor in being provocative, or whatever you may term it 
as? 

Mr. Monaghan. No, I would go further. If someone were nomi¬ 
nated to the Supreme Court—although I would not make the nomi¬ 
nation—if someone were nominated to the Supreme Court who 
held that view, I would vote to confirm them. 

Senator DeConcini. You would? 

Mr. Monaghan. I would vote to confirm. 

Senator DeConcini. Thank you for the clarification. 

The Senator from Utah. 

Senator Hatch. Thank you, Senator DeConcini. That was help¬ 
ful, too. 

Now Professor BeVier, let me just turn to you for a few minutes, 
okay? You have authored a number of articles on the first amend¬ 
ment’s guarantee of free speech, is that right? 

Ms. BeViek. Yes. 

Senator Hatch. You are recognized as an expert in that area. I 
do not think there is any question about that. 


88-374 0 - 89 - 9 ' 



2964 


Now, are you familiar with Judge Bork’s circuit court decisions 
dealing with the first amendment in the Brown v. WMATA, and 
Oilman v. Evans? 

Ms. BeVier. I certainly am. 

Senator Hatch. All right. Would you characterize those decisions 
as pro free speech? 

Ms. BeVier. Well, they are pro free speech, absolutely. What 
they demonstrate is, I think, his ability to take the law of the first 
amendment and to enforce it in a very sympathetic way. Not 
merely that, but to explain how it is that he is going it, and why he 
is reaching his decision. 

In Oilman v. Evans, which is a case I know you have talked a lot 
about, what is as remarkable about Judge Bork’s opinion as the 
result he reaches, is his very careful explanation of why it is, in 
the world in which we presently live, that the standard announced 
by the majority was not quite adequate to meet the problems, and 
why he is convinced that in this context we need additional protec¬ 
tion. 

So, yes, I think they are very sympathetic to free speech. 

Senator Hatch. What about his decision in Finzer v. Barry? 
Would you consider that to be in the mainstream? 

Ms. BeVier. Oh, it is absolutely in the mainstream, and I think 
that- 

Senator Hatch. That was the case where he found that the Gov¬ 
ernment could forbid a group of protesters from demonstrating in 
front of the Soviet and Nicaraguan embassies. 

Ms. BeVier. That is right. It was not merely in the mainstream, 
but I think it is very—I think it mischaracterizes a judge’s function 
to say that whenever a first amendment claim comes before the 
court they are unsympathetic to the first amendment if the first 
amendment claimant does not win. 

I think in Finzer v. Barry, for example, Judge Bork is enormous¬ 
ly careful to explain what it is that he sees are the appropriate rea¬ 
sons why this particular claimant to a first amendment right ought 
not to be given the Court’s sympathy. 

Senator Hatch. Would you mind turning to Senator Humphrey? 

Senator DeConcini. I do not want to overlook the Senator from 
South Carolina, if he cares to ask his questions. 

Senator Thurmond. I will wait to ask my one question. 

Senator DeConcini. The Senator from New Hampshire. 

Senator Humphrey. Mr. Chairman, I just got here. I do not have 
any questions at this point. 

Senator DeConcini. All right. Would you like to let the Senator 
from Utah know when you want to do it. I do not want to curtail 
the fine questioning of the Senator from Utah, but we do have two 
more panels, three more witnesses. I wonder if he has some idea of 
how long he thinks he will be. 

Senator Hatch. I do not think I will be much more than 5 more 
minutes. I would like to finish with Professor BeVier. 

Senator DeConcini. That is quite satisfactory. 

Senator Hatch. And I do have some questions for Mr. Bator, but 
I may not have time to ask those. 

Senator DeConcini. Please continue. 



2965 


Senator Hatch. And of course I want to express my regard for 
my old friend, Leo Levin, and for the great work he has done 
around here. 

Well, the fact is that Finzer v. Barry did not indicate that he 
would grind down or destroy our first amendment freedoms. 

Ms. BeVier. Quite the contrary. 

Senator Thurmond. Speak up so we can hear you. 

Ms. BeVier. I said quite the contrary. 

Senator Hatch. Well, it really was just saying that the first 
amendment is not absolute, that there are some circumstances, 
when, on balance, the Government is justified in placing some limi¬ 
tations on the exercise of the right, and would that be in the main¬ 
stream? 

Ms. BeVier. Oh, that is—yes, it is in the mainstream. Of course. 

Senator Hatch. As a matter of fact, isn’t it true that those who 
claim that the first amendment is an absolute are themselves out 
of the mainstream? 

Ms. BeVier. Oh, I think that that is definitely true, Senator. 

Senator Hatch. I see a lot of heads going up and down there. 

Ms. BeVier. There is no question that the first amendment needs 
to be applied by judges in a way that is sympathetic not merely to 
the claims of first amendment protestors but also to the claims of 
legitimate concerns of Government. 

One has to remember, in Finzer, just as an example, it was only 
within 500 feet of embassies that these particular protests had been 
banned. They had not been banned every place else. There were 
lots of alternative opportunities to engage in the same kind of dis¬ 
cussion. 

Senator Hatch. Bight. Well, I have a lot of questions for you 
also, Mr. Bator, but let me just ask you one. 

Let’s look beyond this particular nomination for a moment. What 
do you think the consequences would be, or will be, for the 
strength and the independence of the judiciary, if this particular 
nomination is defeated for the reasons that have been advanced 
thus far by all of the witnesses? 

Mr. Bator. I think the consequences would be very sad, because 
I think that the precedent that would be set is that a nomination 
of the greatest possible distinction, in terms of intellectual and pro¬ 
fessional capacities, and in terms of moral integrity, can be done 
in, can be hounded to death on the basis of what are very short- 
range and partisan considerations. 

I think what we would see is a precedent that says the Supreme 
Court is sort of owned by a single set of values. 

There is a large mainstream here. Senator. The mainstream in¬ 
cludes people with whom I disagree, who feel that the Constitution 
is so vague, that the judges should have a very broad discretion to 
interpret it, to step in, and to expand rights, and to right wrongs. 

That is a very important tradition, but it is only one tradition, 
and there is another tradition which says that the judges must 
stick more strictly to the text, to the structure, to the original pur¬ 
pose, and that it is for the political branches beyond that narrow 
range to protect the people’s liberties and rights, and interests. 

Both of these are in the mainstream. And what we are seeing 
today is really, I think, a very sad and aggressive effort to excom- 



2966 


municate—as Professor Monaghan said—all who do not agree with 
a single narrow and partisan version of what the Constitution must 
mean. 

Every one of the cases which has been set up here as a touch¬ 
stone for whether you are a right-minded person, or whether you 
are to be cast out as irremediably wrong headed—every one of 
those was itself a very controversial case—most of them 5 to 4, 6 to 
3. 

Every one of the positions which has been denounced here as im¬ 
proper, and wrong headed, and as showing no allegiance to the 
Constitution—every one of those positions was a position to which 
judges like Black and Harlan, and Frankfurter, and Learned Hand 
adhered. Are we now to take the position that they are not entitled 
to be in the mainstream, and that they should not have served on 
the Supreme Court? 

What we are seeing here is the establishment of a narrow and 
partisan orthodoxy, as representing the only view that is to be al¬ 
lowed, and I think for the Senate to accept that would be very sad. 

Senator Hatch. President Oaks, let me just ask you one other 
question. 

Mr. Oaks. Yes, sir. 

Senator Hatch. Now you wrote what is still known as the lead¬ 
ing article on the exclusionary rule. 

I would like you to summarize your conclusions in that article, 
and this next question may—it is part of the total question and 
may be a little bit unfair. But I would just like to ask you to share 
your view of how Judge Bork’s appointment might influence the 
course of criminal law in general. 

Mr. Oaks. Senator, I would like to do that. 

Senator Hatch. Could I interrupt you just to add a little bit 
more. One of the sides of this that has not been brought out is that 
the American people have been very concerned, as I see it, the 
polls show, and politics have shown through the years, that they 
are very concerned about the rife criminal activity in our society, 
especially with regard to the dissemination of drugs, violent crime, 
and organized crime, and the lack of stringent anticriminal activi¬ 
ties in our society. 

And also, they have been very concerned with some of the deci¬ 
sions of the Supreme Court through the years with regard to law- 
and-order issues. 

And so I think it is important to contrast, if we can, if you would 
care to, what this man might do if he gets on the Supreme Court, 
in the area of law and order. 

Mr. Oaks. The thrust of the article you refer to was that the 
basis of the exclusionary rule is deterrence, and that the deter¬ 
rence promise had not been established, and seemed to be question¬ 
able and ought to be looked at critically instead of being accepted 
on the basis of a kind of orthodoxy that forbade disagreement, 
something along the lines of what Mr. Bator has referred to in re¬ 
lation to the orthodoxy, or quasi-orthodoxy, that seems to be press¬ 
ing itself forward for recognition here. 

The impact of that philosophy was simply to look hard at wheth¬ 
er the exclusionary rule is performing its role, and to modify the 



2967 


judicially imposed exclusionary rule as the facts would warrant, 
but not to consider the whole thing immune from investigation. 

I think that probably is the kind of view that an open-minded 
intellectual would take. At least that is what I thought when I 
wrote the article. Whether Judge Bork would agree with that, or 
not, is for him to say. I have never discussed it with him. I expect 
that would be his kind of view because he has been quite open- 
minded and quite critical of some of the prevailing orthodoxies of 
judicial activism. 

Senator Hatch. Would you care to comment on what likely 
effect he will have on law-and-order issues? 

Or do you feel that that is something you would prefer not to 
comment on? 

Mr. Oaks. I think the endorsements that have been given to him 
by groups who are interested in law and order speak more loudly 
on that issue than I could. 

Senator Hatch. I do not think they speak more loudly but they 
certainly speak with a great deal of force and vehemence. 

Thank you very much. I am sorry to have taken so long but this 
is a particularly great panel, and I wanted to take some time and 
ask some of these questions. 

[The following letter was subsequently supplied for the record:] 



2968 


September 28, 1987 


Honorable Orrin G. Hatch 

United States Senate 

SR-135, Russell Senate Office Building 

Washington, DC 20510-4402 


RE: Confirmation of Judge Robert Bork 


Dear Senator Hatch: 

This letter is to express support for the nomination of Judge Bork to 
the Supreme Court. As a female attorney of five years standing, I 
feel I represent a majority of young women attorneys who, contrary 
to many who have appeared before the Judiciary Committee, strongly 
support Judge Bork. I have made it a point to watch all the 
hearings to date, and applaud the actions of yourself and Senators 
Simpson, Grassley, Humphrey, and Thurmond in articulating the 
views of mainstream Americans. 

The principle arguments used by opponents of Judge Bork center 
around his alleged lack of "open-mindedness", which in their estima¬ 
tion is causing great "fear" amongst individuals they define as 
"minorities," which includes all women and all poor and under¬ 
privileged, in addition to a myriad of other groups. They question 
whether he has the necessary sensitivity and compassion (the words 
of Senator Heflin) to meet their definition of judicial integrity and 
commitment to equal justice. They point to an arbitrary, nebulous 
standard of "balance" on the Court and proclaim that Judge Bork, 
while qualified, is the wrong person for this particular vacancy. 

To apply a political litmus test for confirmation of our Supreme Court 
nominees is to set a dangerous precedent that American jurisprudence 
must not tolerate. 



2969 


Honorable Orrin G. Hatch 
September 28 , 1987 
Page 2 


There has been an alarming trend by the courts to use judicial 
decisions to advance a political agenda deemed necessary for an 
"equal" society. To do this is to pre-empt legislative pre-eminence in 
policy making, and is a danger to the balance of power set out in the 
Constitution. The Supreme Court has looked first to the results it 
wished to achieve, and then used whatever "reasoning" was necessary 
to achieve these goals. In the process, they have made their 
authority superior to that of our elected legislators. While the end 
results may be laudible, it overlooks the fundamental ideal of repre¬ 
sentative government, in which change is evolutionary, well-debated 
in the public arena, and achieved through an orderly process of 
debate and compromise. I strongly agree with Senator Humphrey that 
Civil Rights changes were on the horizon of legislative action. 
Admittedly, the courts accomplished the civil rights movement in a 
shorter time frame; however, to say that they were the "champion" of 
civil rights that brought us out of the cave of apartheid is to clearly 
overstate the situation, and is an insult to the legislators and indi¬ 
vidual citizens who worked so assiduously toward civil rights for all. 
With or without the Supreme Court, this country was headed toward 
equality of the races. However, by creating quotas for school inte¬ 
gration by mandating busing, by allowing quotas and special lowered 
standards for minority hiring in the workplace, and other similar 
decisions, the courts have in essence become legislators. 

Another classic example of judicial legislation is Roe v. Wade . The 
decision that an unborn child in the first trimester has fewer consti¬ 
tutional rights that an unborn child in the second or third trimester - 
which is essentially the conclusion drawn when a woman has an 
unlimited right to an abortion in the first trimester, but must meet 
certain guidelines (doctor approval, etc.) in later trimesters - is 
legislation, pure and simple. This becomes particularly evident when 
one considers the medical advances that are daily changing the guide¬ 
lines of "viability" (for those who accept the viability concept in the 
first place). Those on the Committee repeatedly point to Judge 
Bork's stated opposition to the privacy right found in Roe, as well as 
his American Cyanamide decision, as evidence that women "fear" (a 
noun greatly overused by many during the hearings) Judge Bork. If 
this is so, it is only because of deliberate attempts to mislead the 
public. Informed women do not fear Judge Bork. 

There seems to be particular emphasis placed on whether Judge Bork 
includes women under the Equal Protection clause. The Committee 
seems to be missing the point (which you so eloquently made, Senator 
Hatch): the issue is which test of scrutiny is to be applied to groups 
other than racial or ethnic groups. As a woman, I do not feel 
threatened that Judge Bork would apply a reasonable standard rather 
than heightened or strict scrutiny, inasmuch as I consider myself 
neither a minority nor disadvantaged, and am thus entitled only to 
the standard of reasonableness applied to all individuals under the 
Equal Protection clause. 



2970 


Honorable Orrin G. Hatch 
September 28, 1987 
Page 3 


The Bill of Rights has become a supermarket list from which the 
justices pick and choose, isolating those which justify the ends they 
wish to achieve, without considering the Constitution as a cohesive 
document to be read in its entirety. Justices who find an absolute 
right to privacy in our Constitution are singling out a few words 
construed so literally as to lose their meaning within the complete 
context of the Constitution as a whole. The Bill of Rights was 
intended to provide core constitutional principles that are inter¬ 
dependent. Judge Bork and Justice Scalia have been in the forefront 
to return to the premise that every constitutional right must be read 
within the context of the entire document, thereby creating 
reasonable parameters to individual "rights". 

What is evident is that our Constitutional framers intended for 
individuals to have the right to live in a community that reflected the 
values of the majority - morally and economically - through 
representative government. The Warren Era court has, by the 
consensus of only nine individuals, drastically altered that concept. 
We now only have a right to live in a community that tolerates the 
most liberal of moral standards, under the guise of the First Amend¬ 
ment. Parents who wish to supervise what their children read in 
school have to fight outside interest groups in court because freedom 
of expression has been expanded to include any form of expression, 
no matter how offensive it may be to the majority within a community. 

Public morality, under recent Supreme Court decisions, has become no 
more or less than a card game of "52 pick-up", with the Supreme 
Court dealing out cards at will - abortions are private, sodomy is 
not. Privacy issues have come to resemble the myriad of confusing 
criminal law search and seizure exceptions that has hindered law 
enforcement efforts. (Incidentally, considering the time given to 
Professor Tribe and other singular individuals who have been allowed 
to run overtime, I thought the Committee's strict application of its 
time limitations to the police representatives who testified was rather 
shabby, particularly in view of the fact they had waited all day to 
make their presentation. Senator Biden gave the impression that 
judicial interpretation of criminal statutes is insignificant, a view 
which I rather doubt expresses the interests of the American public, 
who consider crime to be a major concern. While their prepared 
statements were made part of the record, the public was deprived of 
the opportunity to hear the full testimony of these experts, as well as 
to hear positive testimony illuminating Judge Bork's impeccable record 
in this area. The Warren Court did much to erode the effectiveness 
of our criminal justice system; surely those who speak of "balance" 
should be interested in testimony which favorably reflects upon a 
Judge who would restore "balance" to the criminal justice system.) 



2971 


Honorable Orrin G. Hatch 
September 28, 1987 
Page 4 


Judicial activism results in schizophrenic decisions that are 
"distinguished" ad infinitim. Congress has the power to change or 
modify legislation that doesn't meet the mark; the Supreme Court has 
to wait for another case to come before it. Clearly, judicial legis¬ 
lation - public policy making by a wink, in Judge Bork's words - 
must be curtailed. 

It is interesting to note that "balance" was never an issue when 
President Roosevelt filled 8 of 9 Supreme Court vacancies. Balance is 
something that, if judged, must be viewed over a time frame of more 
than a decade or more. Inevitably, the "balance" of the Court will 
ebb and flow from conservative to liberal. Our system of presidential 
selection specifically balances this out. Senate Democrat protestations 
of Judge Bork's lack of "balance" seem hollow when viewed in the 
context of the Committee's actual make-up: no females, blacks, 
Hispanics, underprivileged, etc. etc. etc. For these Senators to 
appoint themselves the arbiters of "balance" is hypocritical and 
absurd. 

The American public has expressed its desires regarding the court; 
President Reagan received a clear mandate twice from the American 
public regarding the future course they wish to see charted for this 
country. It is an established fact more people vote in presidential 
elections than other elections. The selection of Supreme Court 
justices was an election issue in both '80 and '84 that was thoroughly 
explored by the media, and as such, the people who elected President 
Reagan clearly understood the values he would apply in judicial 
selections. 

Further, we elect Senators to articulate regional interests; our 
President serves our national interests. 1 do not think it practical to 
assume the public even remotely considered judicial nominees as a 
basis for choosing their Senator. Rather, most assumed (as I have) 
that a nominee will be confirmed provided s/he meets basic minimum 
requirements of integrity and intellectual capability, and lacks any 
specific, identifiable conflict of interest. Advise and consent, in my 
reading of the Constitution, was never intended to allow judicial 
nominations to become an ideological, political battlefield. To say 
these proceedings will have a chilling effect on individuals who are 
interested in serving within the judiciary is to seriously understate 
the consequences of the politicization that has engulfed the advise 
and consent process. 

As a dues paying member of the American Bar Association, I resent 
the fact the ABA has interjected political discourse into their review 
of this candidate. It is the function of the ABA to determine only 
whether a candidate is qualified, as set out in the above paragraph. 
To include political ideology and qualities such as "balance" clearly 
exceeds their function. 



2972 


Honorable Orrin G. Hatch 
September 28, 1987 
Page 5 


I am licensed to practice law in Wisconsin and Florida, and the bulk 
of my practice is family law, I am also an Adjunct Professor. I have 
done considerable pro bono work for women who are often victimized 
by our present family legislation mandating community property, 
limited alimony, and joint custody. A discussion of the current 
problems in family law would be too lengthly for me to explore in this 
letter. Suffice it to say that despite the inequities I see in many 
areas of the law regarding women, I am nonetheless committed to two 
principles: 1) judicial "legislation" is not the solution to our current 
legal problems, and 2) as a woman who represents women, I do not in 
any way "fear" a conservative nominee such as Judge Bork. Judicial 
activism, with its concepts of sterile equality for all individuals, has 
in fact created many of today’s problems in the family law area. 
Milton Friedman has said it best: the Constitution ensured equality of 
opportunity [through representative legislation], not equality of 
result. 

I apologize for the length of this letter. However, in view of the 
broad general attacks that have been made during the Committee 
hearings against Judge Bork, it is impossible to present a cohesive 
argument regarding confirmation without going into some detail. Had 
his opponents confined themselves to Judge Bork's qualifications and 
intellectual capabilities, this letter would probably be unnecessary. 

Please feel free to use this letter in whatever manner you deem 
appropriate to farther the confirmation of Judge Robert Bork, clearly 
one of the most qualified nominees ever presented to the Senate for 
confirmation. 


Kindest regards, 

(Miss) Edith-Marie Dolan 
Attorney-at-Law 


2221 N.E. 41st Street 
Lighthouse Point, FL 33064-7347 
(305) 946-0892 / 429-0010 

EMD:ga 

cc: Honorable Charles E. Grassley 
Honorable Gordon J. Humphrey 
Honorable Alan K. Simpson 
Honorable Arlen Specter 
Honorable Strom Thurmond 



2973 


Senator DeConcini. Senator Humphrey. 

Senator Humphrey. Thank you, Mr. Chairman. 

What you said, Mr. Bator, about the imposition of this new or¬ 
thodoxy, sounds to me like the latest chapter in the popular book— 
sounds to me like the subject of a new chapter in the popular book, 
“The Closing of the American Mind.” 

I really have been astounded at the extraordinary polarization 
on this issue, and that is why I am so grateful to Professor Mon¬ 
aghan and others who are certified persons of the liberal establish¬ 
ment—if I may say that in a respectful way—that you would come 
forward—and you must be the subject of considerable criticism 
among your friends for doing this. 

What in the world is going on out there? I have never seen any¬ 
thing like this in connection with any appointment in nine years, 
since I have been in the Senate. 

Professor Monaghan, can you give us insights into what is hap¬ 
pening? You come from the liberal community, I think it is fair to 
say. What in the world is going on? 

Mr. Monaghan. It is well beyond my expertise. There has 
always been, in American politics, a large role for the irrational, 
and it is quite clear that Judge Bork is able to serve as a lightning 
rod—you know—I think partly because he wears a beard, and he 
looks- 

[Laughter.] 

Mr. Monaghan. He is not like Judge Scalia. 

Senator Humphrey. That should make him more acceptable in 
academia. 

Mr. Monaghan. No. I think that—you know, I think it is Judge 
Scalia whose views are far more conservative than Judge Bork. If 
Judge Scalia came in here today, there would be less intensity, and 
I also think that there are, in every period, symbolic battles, and it 
is time for a symbolic battle at this point, and of course, if it turns 
out that Judge Bork is not confirmed, the substance will not 
change. The next appointment will be, I think, a moderate conserv¬ 
ative. 

Senator Humphrey. Well, you said that—you used the word “ir¬ 
rational.” How do you feel about these—do you regard most of 
these attacks, most of these criticisms as irrational, or the response 
of the liberal community as irrational? 

Mr. Monaghan. No. I think that there are—I think there is a 
larger rational element in it. I think there are legitimate questions 
about how you compose the Supreme Court. This has been a useful 
dialogue about what goes into the composition of the Supreme 
Court. I do think that there is a danger that we will wind up, in¬ 
stead of having this committee act in a quasi-judicial capacity, as 
simply registering the strengths of various political groups. 

This has all the hallmarks of an election to an outsider. 

Senator Humphrey. Yes. 

Mr. Monaghan. And I am sure that it is also true that the ad¬ 
ministration is pushing very hard, so it is not just- 

Senator Humphrey. Not hard enough in my opinion. 

Mr. Monaghan. Well, maybe not, but I am sure that they are 
pushing it, and you wonder whether or not—to be frank about it— 
how much of what we are doing now is simply theater. 



2974 


Senator Humphrey. I have wondered that, too, as we have sat 
here hour after hour. 

Mr. Monaghan. Well, it is very disturbing, if that is the case. 

I do think it is fair to say that the function of this committee, at 
least as it is outlined in the text of the Constitution and in the Fed¬ 
eralist Papers is not to take over the President’s judgment on this 
issue, it is to play the role of a checking function. Judge Bork’s ide¬ 
ology is relevant. If the committee thinks that Judge Bork is out¬ 
side the mainstream, it ought to reject him. I think everybody is 
agreed on that, or should be agreed on that framework. 

Senator Humphrey. Yes. Well, I would just close with this obser¬ 
vation. That if you look at the weight and the expenditures of 
money by various special interest groups, they are almost all in op¬ 
position to the nomination. And, if Judge Bork is denied confirma¬ 
tion on that basis, then I think I will offer legislation—I suppose it 
would take a constitutional amendment, but in tiny case, I think 
we would be well advised to change the name of the institution 
from the Supreme Court to the Court of Special Interests. 

Iyield back whatever time I have. 

The Chairman. Senator Thurmond. 

Senator Thurmond. Thank you very much. 

I want to express my appreciation to you fine people for coming 
here today and testifying. I know some of you had to sacrifice to do 
that. 

Now you have heard all throughout these hearings all kinds of 
questions and issues and going into detail and taking a lot of time. 
I am not going to take any time. I want to ask you one question, 
because it all boils down to this. 

What is your conclusion about this man Judge Bork? Is he quali¬ 
fied to sit on the Supreme Court? Does he have the temperament, 
and does he have the integrity, and does he have the competency to 
be on there? Does he have the courage and the dedication to make 
a good Supreme Court Justice? 

I am going to call each one of your names, and if you will either 
answer yes or no I will appreciate it. 

Professor Bator. 

Mr. Bator. Yes, sir. 

Senator Thurmond. Professor Monaghan. 

Mr. Monaghan. Yes, sir. 

Senator Thurmond. Professor BeVier. 

Ms. BeVier. Yes, sir. 

Senator Thurmond. Professor Levin. 

Mr. Levin. Yes, Senator. 

Senator Thurmond. Professor Oaks. 

Mr. Oaks. Yes, sir. 

Senator Thurmond. Thank you very much. That is all I want to 
know, and that is all the American people want to know. 

Senator DeConcini. Mr. Chairman. 

The Chairman. The Senator from Arizona. 

Senator DeConcini. Would the Senator yield for a question to 
Mr. Monaghan? 

I just want to be sure in answering Senator Humphrey’s ques¬ 
tions—question, or at least his statement there, do you see, in ob¬ 
serving the process we have gone through here—and this is for my 



2975 


benefit—do you see anything that we have done as a committee 
that is improper either in questioning, or the witnesses or in the 
conduct of the committee on either side by anybody, and certainly 
including myself? 

I am asking that from the standpoint that, you know, if Judge 
Bork is confirmed, it seems to me this has been a very useful proc¬ 
ess and one that is legitimate. If he is not confirmed, I feel the 
same way, notwithstanding some very strong feelings about one in¬ 
terest group versus another, as far as this committee. 

Would you care to comment? 

Mr. Monaghan. Absolutely not. I have not heard from any side 
a single criticism of the manner in which this hearing has been 
conducted. I think that everybody understands that every effort 
has been made to conduct it fairly. 

There is a question—the question doesn’t go to the manner in 
which the committee has operated. The question goes to the proc¬ 
ess as it is set up. One of the question is whether or not in the end 
this is going to prove to be a simply atypical situation in which 
people who, by and large, want to make their wishes known, but, 
by and large, operate as interest groups. I mean, the structure of a 
great many panels that came before this committee is, I like this 
decision. Judge Bork doesn’t like this decision, Judge Bork should 
not be confirmed. I think that testimony is irrelevant myself. 

Senator DeConcini. Well, you say it is irrelevant. Should we not 
have heard it? 

Mr. Monaghan. No. You must hear it. You must hear it, I agree 
with that. And then one wonders about the process. I think it is 
going to take some time to know what to make of this, but in terms 
of the conduct of the Senators who conducted the committee, I 
would- 

Senator DeConcini. Because I just was kind of- 

Mr. Monaghan. Yes. It just looks like it is almost out of control. 
That is all. 

Senator DeConcini. Well, from the academic point of view and 
blending that in with our political process, it seems to me like if 
Judge Bork is approved by this committee and confirmed by the 
Senate, people who support him and always have, they are going to 
say, hey, the process is okay. It came out okay. 

Mr. Monaghan. I don’t think that is true. 

Senator DeConcini. You don’t think so. 

Mr. Monaghan. Well, I am not sure- 

Senator DeConcini. And, if he is disapproved, those who oppose 
him—because the Senator from New Hampshire says that all the 
moneys being spent by those who oppose him. I don’t know. The 
mail I am getting is almost equally divided, and it is an organized 
effort, indeed by special interests from both proponents and oppo¬ 
nents. I have never seen anything like it I guess since I have been 
here. 

And you can tell it has cost some money to print the cards and 
letters and to make the effort and to make the phone calls and to 
put it on the 700 Club and to put it on the NAACP writing list, and 
Common Cause, or whoever it is. It is just a real effort to bring this 
message of what they feel is there, and, of course, that is the proc- 



2976 


ess. I don’t object to it as long as it is within bounds of not being 
obnoxious. 

Mr. Monaghan. Well, maybe the way to conclude is to say this. 
This is an unsettling experience and one may say, probably, of this 
process what Churchill said of democracy—“It is the worst form of 
government except for every other one.” I don’t know. 

Senator DeConcini. Yes. Thank you. Thank you, Mr. Chairman. 

The Chairman. It is the only one we have. Thanks for coming. 

While we are bringing the next panel up, the committee has re¬ 
ceived today telegrams from two professors that relate to one of the 
essays submitted to us by former Secretary Carla Hills. Both pro¬ 
fessors object to the description of their views in the essay written 
by Professor Mary Ann Glendon. 

The first telegram is from Professor Lucinda Finley, of Yale Law 
School, and her telegram reads as follows: 

I would like to respond to the gross mischaracterization and oversimplification of 
my views on sex equality contained in the written remarks of Professor Mary Ann 
Glendon delivered to the Senate Judiciary Committee by Carla Hills. 

It is I, and not Judge Bork, who in my writings has argued for a nuanced and 
differentiated approach to equality. 1 have written that our concept of legal equality 
must be enhanced to include the needs and experiences of women, rather than the 
predominantly male standard that has traditionally been applied in his judicial 
opinions on sexual harassment in the American Cyanamid case. 

Judge Bork has displayed startling insensitivity to the needs and realities facing 
working women. Far from advocating the nuanced approach to equality that would 
protect women, Judge Bork has continually questioned whether women should even 
be protected by the equal protection clause of the Constitution. In this regard he 
would be far worse for women than any recent members of the Supreme Court. 

While 1 do not always agree with the approach of all Justices, the Court has de¬ 
veloped a consensus in favor of sex equality that Judge Bork does not support and 
has frequently criticized. I strongly oppose his nomination. 

Thank you for considering my views and allowing the opportunity to correct the 
record. 

Sincerely, Lucinda M. Finley, Associate Professor of Law at Yale. 

And the second one is from Carol Gilligan, Professor, Harvard 
University Graduate School of Education. 

Carla Hills in her testimony to your Committee cited a paper by Professor Mary 
Ann Glendon. Professor Glendon’s paper erroneously implies that I would support 
the nomination of Judge Robert Bork and states that his judicial philosophy exem¬ 
plifies what 1 have called a different voice. 

In fact, Judge Bork represents precisely the kind of rigid, dogmatic, abstract and 
impersonal judicial philosophy that calls for a different voice. His opinions and writ¬ 
ings rule out of court many voices which the American judicial Bystem must be re¬ 
sponsive to if protections afforded by the Constitution are to be extended to all citi¬ 
zens. 

I strongly urge a vote against his confirmation. 

Carol Gilligan, Professor, Harvard University Graduate School of Education. 

[Telegrams follow:] 



2977 


l M FINLEY 

HI HIGHLAND ST 

NEW HAVEN CT *t9l| ISAM 


Western 

Union 


Mailgram 



4-0MIJRB16T 09/24/ST ICS IPMMTZZ CM WHSB 
20J4S24929 NQMS TDHT NEM HAVEN CT JJT 09-JO 042SP EOT 


SENATOR JOSEPH BIOEN 
CAPITOL ONE DC 10510 


1 MOULD LINE TO RESPOND TO THE OROKTH MISCHARACTERHaTION ANO OVER 
SIMPLIFICATION OP MY VIEW# ON IIP EOURLITY COMTPINED IN THE NRITTCN 
REMARKS OP PROFESSOR maRV ann GLENOON DELIVERED TO THE SENATE 
JUDICURT COMMITTEE BV CARLA HILLS, IT IS I, AND NOT JUDGE BORN, MHO 
IN MY WRITINGS HAS ARGUED FOR A "NUANCEO ANO DIFFERENT!ATEO APPROACH 
TO ESlIALITY,* I HAVE WRITTEN THAT OUR CONCEPT OF LEGAL EQUALITY MUST 
BE ENRICHED TO INCLUDE THE NEEDS AND ENPERIENCES OF NOHEN, RATHER 
Than THE PREDOMINANTLY MALE STANDARD THAT HAS TRADITIONALLY BEEN 
APPLIED, IN HIS JUDICIAL OPINIONS ON SEPUAL HARASSMENT ANO IN THE 
AMERICAN CYANAMIO CASE, JUDGE BORK HAS DISPLAYED STARTLING 
INSENSITIVITY TO THE NEEDS AND REALITIES FACING WORKING WOMEN, PAR 
FROM ADVOCATING A "NUANCEO* APPROACH TO EQUALITY THAT WOULO PROTECT 
WOMEN, JUDGE BORK HAS CONTINUALLY QUESTIONED WHETHER WOMEN SHOUlO 
EVEN BE PROTECTEO BY THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION. 
IN THIS REGARD, HE WOULD BE PAR WORSE FOR WOMEN THAN AMY RECENT 
MEMBERS OF THE SUPREME COURT, WHILE I DO NOT ALWAYS AGREE WITH THE 
APPROACH OF ALL JUSTICES, THE COURT HAS DEVELOPED A CONSENSUS IN 
FAVOR OF SEK EQUALITY That JUDGE BORK DOES NOT SUPPORT AND HAS 
FREQUENTLY CRITICIZED, I STRONGLY OPPOSE MIS NOMINATION, THANK YOU 
FOR CONSIDERING HV VIEWS ANO ALLOWING ME TWIG OPPORTUNITY TO CORRECT 
THE RECORD. 

SINCERELY YOURS, 

LUCINDA H FINLEY 
ASSOCIATE PROFESSOR OP LAW 
YALE LAM SCHOOL 
JIT HIGHLAND ST 
new haven CT 0*911 

lSlI* BBT 

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^ SENATOR JOSEPH 8IDEN 
WASHINGTON DC 20810 


CAUL* HILLS IN HER TESTIMONY TO YOUR COMMITTEE CITED A PAPER BY 
PROFESSOR MARY ANN GLENDON, PROFESSOR CLCNDON•S PAPER ERRONEOUSLY 
IMPLIES THAT I WOULD SUPPORT THE NOMINATION OF JUDGE ROBERT SORK AND 
STATES THAT HIS JUDICIAL PHILOSOPHY EXEMPLIFIES MHAT 1 NAVE CALLED A 
"DIFFERENT VOICE." IN FACT* JUDGE BORK REPRESENTS PRECISELY THE KIND 
OF RIGID? DOGMATIC. ABSTRACT AND IHPERSONAL JUDICIAL PHILOSOPHY THAT 
CALLS FOR a DIFFERENT VOICE, HIS OPINIONS AND KRITIN08 RULE OUT 'OF 
COURT many VOICES WHICH THE AHERICAN JUOICIAL SYSTEM HOST 8E 
RESPONSIVE TO IF THE PROTECTIONS AFFOROED BY THE CONSTITUTION ARE TO 
bE EXTENDED TD ALL CITIZENS, I STRONGLY URGE YOU TO VOTE AGAINST HIS 
CONFIRMATION, 

CAROL GILLIGAN, PROFESSOR 

HAHVARD UNIVERSITY GRADUATE SCHOOL OF EDUCATION 
10t<M) EST 


IPHPONX «SH 


2978 




2979 


Two practicing lawyers make up our next panel. Howard Klein is 
a partner in the Chicago law firm of Kirkland & Ellis, and Read 
Carlock is a partner in the Phoenix law firm of Ryley, Carlock & 
Applewhite. 

Would those gentlemen please come forward? I welcome them to 
the committee. And, if they will be sworn. 

Would you gentlemen take the oath? Do you swear the testimony 
you are about to give is the whole truth and nothing but the truth, 
so help you God? 

Mr. Krane. I do. 

Mr. Carlock. I do. 

The Chairman. Thank you. Welcome, gentlemen. As you have 
observed, by being so patient all day, we are trying to adhere to a 
5-minute rule. If we could start with you, Mr. Krane. 

Did I say Klein? I meant to say Krane. I'm sorry if I said that. 

Mr. Krane. That is quite all right, Senator. 

The Chairman. Mr. Krane, I am correct you are a partner in 
Kirkland & Ellis? 

Mr. Krane. Yes, sir. 

The Chairman. Please proceed. 



TESTIMONY OF A PANEL CONSISTING OF HOWARD KRANE AND 

READ CARLOCK 

Mr. Krane. Thank you. I am grateful for this opportunity to tes¬ 
tify in support of Judge Robert Bork’s nomination as an Associate 
Justice of the Supreme Court. As you have said, I am a senior part¬ 
ner in the law firm of Kirkland & Ellis, in its Chicago office. I am 
a member of the American Bar Association and the American Law 
Institute. I have written extensively in the field of taxation and 
have taught business planning for over 15 years at the University 
of Chicago Law School. I have served on occasion as an unpaid con¬ 
sultant to the Treasury and to the Senate Finance Committee on 
tax matters. 

Others have testified to Judge Bork’s qualifications as a constitu¬ 
tional law scholar and his record as a distinguished and principled 
jurist. My focus will be on Bob Bork the person. I hope my testimo¬ 
ny will be helpful to this committee bWiause I understand that 
some committee members who have not known Bob Bork over the 
years have wondered what sort of person he is. 

By way of background and as an historical footnote, I am the 
lawyer who as a young man was the immediate beneficiary of Bob 
Bork’s insistence to the senior partners of my law firm that it 
eliminate prejudice and discrimination from its hiring practice in 
1957, a time, regrettably, when quotas and other discriminatory 
practices were not uncommon within the legal profession and most 
other parts of American society and business. 

During my work with him at my firm over 4 years our personal 
friendship began and grew. After he left to teach at Yale, our asso¬ 
ciation continued. I was close enough to Bob to share his grief and 
sorrow during Claire’s long illness and tragic death. I was close 
enough to Bob to have had the honor of serving as best man at his 
marriage to Mary Ellen. 

From these 30 years of close acquaintance and friendship, I be¬ 
lieve I can supply answers to any questions you may have about 
Judge Bork as a person. So that there is no mistake about my own 
politics and viewpoints, I readily acknowledge that I am and have 
been considered a liberal Democrat. I have voted for every Demo¬ 
cratic Presidential nominee beginning with Adlai Stevenson. 

The negative symbolism and rhetoric that has clouded real in¬ 
sight into Judge Bork’s views during this confirmation process bear 
no resemblance to the man and his true character. Bob Bork is a 
person without prejudice against any group. In all the many per¬ 
sonal and private conversations I have had with him over the 
years, I have never heard him disparage anyone based on race, 
gender, religion or ethnicity. There can be and is no basis for any 
suggestion that Bob Bork’s personal views and beliefs make him 
unsympathetic to victims of official or private discrimination or 
predisposed against their plight. If there were, we would not be 
friends, and I would not have had the opportunity he opened up for 
me and others at my firm. 

Second, Bob Bork is a person who has devoted his professional 
life and much of his personal life to thoughtful analysis and intel¬ 
lectual inquiry. His intellectual life reflects the highest standard of 


( 2980 ) 



2981 


integrity, one which is totally at war with the charges of prejudg¬ 
ment and intransigence. 

A major part of our time over the years has been expended in 
spirited discussion about matters, large and small, of philosophy, 
public policy and the law. What I know from these discussions is 
that Bob Bork is not one who argues for sport or who insists that 
his initial position prevail. He grapples with ideas, including oppos¬ 
ing viewpoints, to better understand the issues, to examine the 
premises of competing positions, and to reach reasoned and princi¬ 
pled conclusions. 

As should any person of real integrity, he is willing to modify 
and to change his views when persuaded by the merits of others’ 
arguments. 

I think one reason that Bob Bork is misperceived by his critics is 
that he is engaged in the challenge of intellectual life with robust 
rhetoric, enormous vigor, and effective wit. No one who knows him 
is fooled by the intensity of his debate to believe that his is not a 
searching and open mind. 

I am not nearly as well qualified as others whom you have heard 
attest to Judge Bork’s credentials as a scholar and a judge, but to 
be certain, I know Bob Bork the person. I have seen his commit¬ 
ment to equal rights in a very personal way. I have seen him pass 
up the opportunity for a lucrative private practice so that he could 
serve the legal profession and his country through teaching and 
governmental service. 

I have, in short, the measure of the man. With the authority of 
personal knowledge, I can and do reject any suggestion that Bob 
Bork has misstated his views or falsely professed to have changed 
his views in order to enhance his chances of being approved by this 
committee and confirmed by the Senate. 

His integrity, to say nothing of his respect for the law and the 
constitutional preserve of the U.S. Senate, would not permit him to 
speak during these hearings with less than complete candor. He 
has devoted his professional life to honest intellectual inquiry and 
discourse. That is at the core of who Bob Bork is. He would not 
abandon that which he holds most dear in order to attain any 
office or honor including that of being a Supreme Court Justice. 

As I indicated at the outset of my remarks, I am grateful for the 
opportunity to testify on behalf of Bob Bork. But I am also sad¬ 
dened that testimony such as mine is in any way necessary. I am a 
believer that reasonable men and women can disagree about a 
great many things, but reasonable men and women cannot disagree 
about the integrity, honesty and candor of Bob Bork. In these re¬ 
spects, as well as many others, he is the finest man I know. 

Thank you. 

[Prepared statement follows:] 



2982 


Howard G, Krane 

Testimony before Senate Judiciary Committee 
on the Proposed Confirmation of Judge Robert H. Bork 

I am grateful for this opportunity to testify In 
support of Judge Robert Bork’8 nomination aa an Associate Justice 
of the Supreme Court.1/ Others have testified to Judge Bork's 
qualifications as a constitutional law scholar and his record a© 
a distinguished and principled jurist. Hy focu© will be on Bob 
Bork, the person. I hope my testimony will be helpful to this 
Committee because I understand that some Committee members who 
have not known Bob Bork over the years have wondered what sort of 
a person he is. 

To that question, I think I am well qualified to speak 
and to assure the Committee that Bob Bork is a man free from 
prejudice toward any group, who has exemplified the values of 
equality and fairness throughout his life. 

By way of background and as an historical footnote, I 
am the lawyer who aa a young man was the immediate beneficiary of 
Bob Bork's Insistence to the senior partners of my lav firm that 
it eliminate prejudice and discrimination from its hiring 
practice in 1957, a time regrettably when quotas and other 
discriminatory practices were not uncommon within the legal 
profession and most other parts of American society and business. 
During my work with him at my firm over four years, our personal 
friendship began and grew. After he left to teach at Yale, our 
association continued. I was close enough to Bob Bork to share 
his grief and sorrow during Claire's long illness and tragic 
death. I was close enough to Bob to have had the honor of 
serving as beBt man at his marriage to Mary Ellen. 

From these thirty years of close acquaintance and 

1/ I am a senior partner in the firm of Kirkland & Ellis in its 
Chicago office. I am a member of the American Bar 
Association and the American Lav Institute, I have written 
extensively Irk the field of taxation and have taught 
business planning for over 15 years at the University of 
Chicago Law School. I have served on occasion as an unpaid 
conaultant to the Treasury and to the Senate Finance 
Committee on tax matters. 



2983 


friendship, I believe I can supply answers to any questions you 
may have about Judge Boric as a person. So that there is no 
mistake about my own politics and viewpoints, I readily 
acknowledge that I am and have been considered a liberal 
Democrat; I have voted for every Democratic presidential nominee 
beginning with Adlai Stevenson. 

The negative symbolism and rhetoric that has clouded 
real insight into Judge Bork's views during this confirmation 
process bear no resemblance to the man and his true character. 

Bob Bork is a person without prejudice against any group. He has 
demonstrated, in my situation and throughout his life, his 
commitment on principle to Individual equality and fairness. In 
all the many personal and private conversations I have had with 
him over the years, I have never heard him disparage anyone based 
on race, gender, religion, or ethnicity. There can be, and is, 
no basis for any suggestion that Bob Bork's personal views and 
beliefs make him unsympathetic to victims of official or private 
diacrimination or predisposed against their plight. If there 
were, we would not be friends and I would not have had the 
opportunity he opened up for me and others at my firm. 

Second, Bob Bork is a person who has devoted his 
professional life and much of hie personal life to thoughtful 
analysis and intellectual inquiry. His intellectual life 
reflects the highest standard of integrity, one which is totally 
at war with the charges of prejudgment and intransigence. A 
major part of our time over the years has been expended in 
spirited discussion about matters. Large and small, of 
philosophy, public policy, and the law. What I have observed and 
know from these discussions, is that Bob Bork is a person who 
does not argue for sport or who insists that his initial position 
prevail. He grapples with ideas —- including opposing viewpoints 
-- to better understand the issues, to examine the premises of 
competing positions, and to reach reaaoned and principled 
conclusions. As should any person of real integrity, he is 
willing to modify and to change his views when persuaded by the 
merits of others' arguments. It is the essence of intellectual 
integrity for a person to challenge the logic and basis of 



2984 


positions, including his own, and to nodify his views when 
persuaded by reason and evidence. 

I think one reason that Bob Bork ia misperceived by hie 
critics is that he has engaged in the challenge of Intellectual 
life with robust rhetoric, enormous vigor, and effective wit. No 
one who knows him is fooled by the intensity of his debate to 
believe that his Is not a searching and open mind. 

Finally, I can attest that Bob Bork has the integrity 
and ability to separate his own philosophic guests from the 
discipline of evaluating and deciding cases as a judge and as a 
Justice. While challenging the premises of a legal doctrine as 
an individual contributing to public debate, he has proven as a 
judge that he does not repudiate the rule of law or the role of 
precedent and that he does respect the functions of the 
legislative and executive, as well as the judiciary. 

I am not nearly as well qualified as others whom you 
have heard attest to Judge Bork’s credentials as a scholar and a 
judge. To have served with distinction as a tenured professor at 
one of the nation's foremost law schools, as the principal 
constitutional lawyer for the government as Solicitor General, 
and as a respected jurist on the United States Court of Appeals, 
it seems obvious to me that his professions! qualifications are 
excellent and beyond real dispute. 

But, to be certain, I know Bob Bork as an Individual. 

I have seen his commitment to equal rlghte in a very personal 
way. I have seen him pass up the opportunity for a lucrative 
private law practice eo that he could serve the legal profession 
and his country through teaching and governmental service. 



2985 


I have. In short, the measure of the man. With the 
authority of personal knowledge, I can and do reject any 
suggestion that Bob Bork has misstated his views, or falsely 
professed to have changed his views, in order to enhance hie 
chances of being approved by this Committee and confirmed by the 
Senate. 

Such suggestions are outrageous. His Integrity — to 
say nothing of his respect for the lav and the constitutional 
preserve of the United States Senate -- would not permit him to 
speak during these hearings with less than complete candor. He 
has devoted his professional life to honest Intellectual inquiry 
and discourse. That Is at the core of who Bob Bork 1 b. He would 
not abandon that which he holds most dear in order to attain any 
office or honor — including that of being a Supreme Court 
Justice. 

As I Indicated at the outset of my remarks, I am 
grateful for the opportunity to testify on behalf of Bob Bork. 

But I am also saddened that testimony such as mine Is In any way 
necessary. I am a believer that reasonable men and women can 
disagree about a great many things. But reasonable men and women 
cannot disagree about the integrity, honesty and candor of Bob 
Bork. In these respects, as well as many others, he Is the 
finest man I know. 



2986 


The Chairman. He is very lucky to have a friend like you. Seri¬ 
ously. Thank you for your testimony and for coming. 

Mr. Carlock. 

TESTIMONY OP GEORGE READ CARLOCK 

Mr. Carlock. My name is George Read Carlock. I have practiced 
law in Phoenix, AZ, for just a few months short of 40 years. 

I speak here today from the perspective of a practicing lawyer 
who understands the vital importance to our country that its 
judges be of the highest caliber and ability. Practicing lawyers 
probably pay more attention to how the judges at all levels do their 
jobs than do any other group of people, and we are simultaneously 
very respectful and very critical of them. 

There are some qualities of character, intellect and personality 
which are essential to judges at all levels. A judge must have integ¬ 
rity and he must be professionally competent. Without these quali¬ 
ties, he would have no business being a judge at all. With these 
qualities, he still needs another—a judicial temperament. Volumes 
can be and have been written on just what a judicial temperament 
is. 

To most lawyers, it means understanding the facts and consider¬ 
ing and understanding the arguments before reaching a decision, 
and basing the decision on the facts and the relevant legal princi¬ 
ples, rather than using a primarily result-oriented approach. 

As you have heard from most of the witnesses in these proceed¬ 
ings, there is no question but that Judge Bork has these three 
qualities. An example is the testimony of former Transportation 
Secretary Coleman, who, as a member of the American Bar Asso¬ 
ciation's Committee on Judicial Qualifications, studied Judge 
Bork’s judicial qualifications before his appointment to the court of 
appeals. Secretary Coleman has testified before this committee as 
to those qualities that he “could not fault Bork in any of the 
three." 

It is perfectly true, of course, that different courts have different 
tasks to perform, and thus, that particular attributes may be im¬ 
portant in varying degrees on different courts. In a trial court 
judge, for example, an ability to grasp the facts quickly and a 
ready command of the everyday questions about rules of procedure 
and of evidence are especially valuable attributes. The ability to 
decide quickly and accurately is of the greatest importance. 

Most often the judge’s task is to conduct an orderly and fair trial 
to determine facts, to analyze the legal and factual arguments pre¬ 
sented, and then to determine the outcome of the case by applying 
to the facts the relevant principles of law. This is a huge responsi¬ 
bility. On its proper discharge depends the proper functioning of 
our daily lives and our relations with each other and with our gov¬ 
ernment. The element of predictability which is inherent in the 
careful and conscientious discharge of this responsibility justifies 
our proud boast that we have a government not of men but of laws. 

The Justices of the U.S. Supreme Court have a somewhat differ¬ 
ent task. As to the facts, their task may be narrower because they 
look to findings of fact rather than to a welter of testimony and 
documentary evidence. But as to determining the legal principles 



2987 


which will govern the case, their task is much wider. By the very 
nature of our judicial process, the questions they consider are the 
most difficult ones. They include the questions which have been an¬ 
swered differently by different courts of appeal, questions posed by 
disputes between two or more of our co-equal State governments, 
and the most fundamental questions concerning the rights and 
duties of the citizenry amongst themselves and in relation to their 
government, and the scope of the authorities and responsibilities of 
that government. 

Justices must have the ability and the willingness to understand 
the questions of legal philosophy inherent in construing and apply¬ 
ing in a principled and systematic way a Constitution which was 
designed not as an exercise in abstract thought and not as a de¬ 
tailed prescription of how our Government is to operate or how we 
must act towards one another, but as a framework of basic princi¬ 
ples and values which would preclude deciding everything on a 
case-by-case basis, surd which could rest on the concept of responsi¬ 
ble government with the consent of the governed. 

Only if conforming to such a framework can our laws have the 
moral force which is necessary for them to be respected. The Jus¬ 
tices must assure themselves and the country of the consistency of 
application of principles of constitutional concepts and the legisla¬ 
tive and administrative measures those concepts govern, at the 
same time recognizing the force of new ideas and of new arguments 
and of evolution in the situations to which the basic principles are 
to be applied. 

Each Justice must therefore respect precedent but must be will¬ 
ing to engage in a constant re-examination of prior decisions and 
subscribe to changes in appropriate situations. Neither a slavish 
and uninformed adherence to prior decisions nor a purely case-by- 
case result-oriented approach will do the job. 

Judge Bork has to a remarkable degree the qualities of intellect 
and character necessary to this task. His insistence on determining 
how and where an idea fits into the framework of our Constitution 
gives a principled continuity to his thinking and hence his judicial 
determinations and opinions. 

His lively intellectual curiosity gives assurance that new facts 
and new arguments will be considered and old results changed, if 
appropriate. When is it appropriate to change old results? 

I believe Judge Bork’s answer to that question, in practice, will 
be that he will not seek to change old results just because in his 
view there was a better answer when the result was first reached if 
in the meantime governmental and private arrangements and ex¬ 
pectations have made the old results so much a part of our struc¬ 
ture that it is better left alone. 

He will also, I believe, be perfectly willing to examine new facets 
of any matter and listen intelligently and receptively to new argu¬ 
ments. In doing all this he will adhere scrupulously to the principle 
that the legislative and judicial branches are separate and co-equal 
and will not set himself up as a super legislator. 

As a footnote to all that, and a very important one to practicing 
lawyers, he has the understanding of our legal system and the 
mental discipline to state his opinions in such a way that lower 



2988 


courts and lawyers can know with some precision how to deal with 
concrete and detailed cases. 

Although the element of predictability is not the same with the 
Supreme Court as it is with the lower courts, nevertheless, the Su¬ 
preme Court has a great responsibility in this regard, and its 
means of discharging this responsibility is by giving clear guidance 
which can be broadly and effectively applied. 

The Chairman. Mr. Carlock, if you could summarize, I would ap¬ 
preciate it. You are twice over your time. If you could. 

Mr. Carlock. In this I believe Judge Bork will excel. Thank you, 
Mr. Chairman. 

[Prepared statement follows:] 



2989 


STATEMENT OF 
GEORGE READ CARLOCK 
BEFORE THE SENATE JUDICIARY COMMITTEE 
SEPTEMBER 18 # 1987 

My name is George Read Carlock. I live in 
Phoenix, Arizona, and have been engaged in the general 
practice of law in Phoenix for just short of forty years. 

I ara a member of the State Bar of Arizona, the 
Maricopa County Bar Association, the American Bar 
Association, and the American Judicature Society. I am a 
Fellow of the American College of Probate Counsel and a 
Fellow of the American Bar Foundation. I have been Chairman 
of the Antitrust Law Section and of the Corporation, Banking 
and Business Law Committee of the State Bar of Arizona; and 
was for ten years a member, and for two years chairman, of 
the Supreme Court's Committee on Examinations and 
Admissions. For more than twenty years I was a lawyer 
representative to the Ninth Circuit Judicial Conference. 

I appear here today not as a representative of any 
organization. I speak from the perspective not of an 
advocate for any particular cause or ideological viewpoint, 
but from the perspective of a practicing lawyer who 
understands that it is vitally important to our country that 
its judges be of the highest caliber and ability. 

Practicing lawyers probably pay more attention to 
how the judges at all levels do their jobs than do any other 
group of people, and are simultaneously very respectful and 
very critical of them. 

There are some qualities of character, intellect 
and personality which are essential to judges at all levels. 

A judge must have integrity, and he must be 
professionally competent. Without these qualities he would 



2990 


have no business being a judge. With these qualities, he 
still needs another—a judicial temperament. Volumes can 
be—and have been—written on just what a judicial 
temperament is. To most lawyers it means understanding the 
facts and considering and understanding the parties' 
arguments before reaching a decision, and basing the 
decision on the facts and the relevant legal principles 
rather than using a primarily result-oriented approach. 

As you have heard from most of the witnesses in 
these proceedings, there is no question but that Judge Bork 
has these three qualities. An example is the testimony of 
former Transportation Secretary Coleman who, as a member of 
the American Bar Association's Committee on Judicial 
Qualifications, studied Judge Bork's judicial qualifications 
before his appointment to the Court of Appeals in 1982. 
Secretary Coleman has testified before this Committee, as to 
those qualities, that "he could not fault Bork in any of the 
three." 


It is perfectly true, of course, that different 
courts have different tasks to perform, and thus that 
particular attributes may be important in varying degrees on 
different courts. In a trial court judge, for example, an 
ability to grasp the facts quickly and a ready command of 
the every-day questions about rules of procedure and of 
evidence are especially valuable attributes. The ability to 
decide quickly and accurately is of the greatest importance. 
Most often the judge's task is to conduct an orderly and 
fair trial, to determine the facts, to analyze the legal and 
factual arguments presented, and then to determine the 
outcome of the case by applying to the facts the relevant 
principles of law. This is a huge responsibility. On its 
proper discharge depends the proper functioning of our daily 
lives, and our relations with each other and with our 
government. The element of predictability which is inherent 
in the careful and conscientious discharge of this 



2991 


responsibility justifies our proud boast that ve have a 
government not of men but of laws. 

The justices of the United States Supreme Court 
have a somewhat different task. As to the facts, their task 
may be narrower, because they look to findings of fact 
rather than to a welter of testimonial and documentary 
evidence. 


But as to determining the legal principles which 
will govern the case, their task is much wider. By the very 
nature of our judicial process, the questions they consider 
are the roost difficult ones. They include the questions 
which have been answered differently by different courts of 
appeals, questions posed by disputes between two or more of 
our co-equal state governments, and the most fundamental 
questions concerning the rights and duties of the citizenry 
amongst themselves and in relation to their government, and 
the scope of the authorities and responsibilities of that 
government. 


The justices must have the ability and the 
willingness to understand the questions of legal philosophy 
inherent in construing and applying, in a principled and 
systematic way, a Constitution which was designed not as an 
exercise in abstract thought, and not as a detailed 
prescription of how our government is to operate or how we 
must act toward one another, but as a framework of basic 
principles and values which would preclude deciding 
everything on a case-by-case basis, and which could rest on 
the concept of responsible government with the consent of 
the governed. Only if conforming to such a framework can 
our laws have the moral force which is necessary for them to 
be respected. 

The justices must assure themselves and the 
country of the consistency of application of principles of 



2992 


constitutional concepts and the legislative and 
administrative measures those concepts govern, at the same 
time recognizing the force of new ideas and of new 
arguments, and of evolution in the situations to which the 
basic principles are to be applied. 

Each justice must therefore respect precedent, but 
must be willing to engage in a constant re-examination of 
prior decisions and subscribe to changes on appropriate 
situations. Neither a slavish and uninformed adherence to 
prior decisions nor a purely case-by-case, result-oriented 
approach, will do the job. 

Judge Bork has, to a remarkable degree, the 
qualities of intellect and character necessary to this task. 
His insistence on determining how and where an idea fits 
into the framework of our constitution gives a principled 
continuity to his thinking and hence his judicial 
determinations and opinions. His lively intellectual 
curiosity gives assurance that new facts and new arguments 
will be considered and old results changed if appropriate. 

When is it appropriate? I believe Judge Bork 1 b 
answer to that question in practice will be that he will not 
seek to change old results just because in his view there 
was a better answer when the result was first reached, if in 
the meantime governmental and private arrangements and 
expectations have made the old result so much a part of our 
structure that it is better left alone. He will also, I 
believe, be perfectly willing to examine new facets of any 
matter, and listen intelligently and receptively to new 
arguments. In doing all this, he will adhere scrupulously 
to the principle that the legislative and judicial branches 
are separate and co-equal, and will not set himself up as a 
super legislator. 



2993 


As a footnote to all that, and a very important 
one to practicing lawyers, he has the understanding of our 
legal system and the mental discipline to state his opinions 
in such a way that lower courts and lawyers can know with 
some precision how to deal with concrete and detailed cases. 
Although the element of predictability is not the same with 
the Supreme Court that it ia with the lower courts, 
nevertheless, the Supreme Court has a great responsibility 
in this regard, and its means of discharging this 
responsibility is by giving clear guidance which can be 
broadly and effectively applied. In this I believe Judge 
Bork will excel. 



2994 


The Chairman. That is what I call bringing it to an end. Thank 
you very, very much. 

The Senator from South Carolina. 

Senator Thurmond. I want to thank you gentlemen for coming 
and testifying. I would just ask you the same question I just asked 
the panel before. 

You know Judge Bork. I want to ask you this. Is he in the main¬ 
stream or is way out, leftwing or rightwing? 

Mr. Carlock. In my view, Senator Thurmond, he is in the main¬ 
stream. 

Senator Thurmond. In the mainstream? 

Mr. Carlock. Yes, sir. 

Senator Thurmond. Well, that is what Chief Justice Burger says, 
so you and he are in accord on that. 

Mr. Carlock. Well, I am in good company. 

Senator Thurmond. Chief Justice Burger went so far as to say, if 
Judge Bork’s an extremist, I am an extremist, showing that he has 
full faith that he is reasonable and within the mainstream. 

How do you feel about that? 

Mr. Krane. I feel the same way. 

Senator Thurmond. Same way. 

Mr. Krane. Yes. 

Senator Thurmond. Now, I want to ask you this question. You 
heard the question I asked the previous panel here. Are you satis¬ 
fied of his qualifications to be a Supreme Court Justice, and would 
you recommend that the Senate confirm him for the Supreme 
Court? 

Mr. Carlock. I am so satisfied, Senator Thurmond, and I do so 
recommend. 

Mr. Krane. I am obviously so satisfied and do so recommend. 

Senator Thurmond. I thought that would be your answer but I 
just wanted to get it on the record. Thank you very much. 

The Chairman. Senator DeConcini. 

Senator DeConcini. Mr. Chairman, I don’t have any questions. I 
do want to join the chairman in complimenting Mr. Krane. Obvi¬ 
ously, you are a good friend. And quite frankly, it is important for 
me to know something personal about him, somebody who has 
worked with him and seen him in action. 

And just for the record, Mr. Chairman, Mr. Carlock is senior 
member of one of the most prestigious law firms in the country, 
hailing from my State, and he is indeed an expert in antitrust. He 
has been around a long time with such notables as Ted Riggins and 
Evo DeConcini and others who have practiced a long time, so I am 
very pleased that the committee was able to take his testimony. 

Thank you, Mr. Chairman. 

The Chairman. Thank you. 

Senator Humphrey. 

Senator Humphrey. I thank the witnesses, Mr. Chairman, but I 
have no questions. 

The Chairman. Gentlemen, you were kind to come. Your testi¬ 
mony is much appreciated. Thank you very much. 

Mr. Carlock. Thank you, Mr. Chairman. 

Mr. Krane. Thank you, Mr. Chairman. 



2995 


The Chairman. Our last witness for today, I had indicated incor¬ 
rectly that he was not going to testify, is Kenneth Dean, pastor of 
the First Baptist Church in Rochester, NY. 

Pastor Dean, would you come forward, please? 

Reverend Dean, would you raise your right hand? Do you swear 
the testimony you are about to give is the whole truth and nothing 
but the truth, so help you God? 

Reverend Dean. I do, sir. 

The Chairman. Thank you very much. 

If you could keep your remarks within 5 minutes, we would ap¬ 
preciate it. And any written testimony you have will be entered in 
the record as if read. 

TESTIMONY OF REVEREND KENNETH DEAN 

Reverend Dean. Mr. Chairman and distinguished members of 
the Senate, I thank you for the opportunity of coming before you 
today. I am Kenneth L. Dean, of 3873 Elmwood Avenue, Rochester, 
NY. A native of Maryville, TN. 

I attended public schools in Maryville, TN. My undergraduate 
college work is in philosophy, from Carson-Newman College, a 
Southern Baptist school in Jefferson City, TN. 

I attended Southeastern Seminary in Wake Forest, NC. My bach¬ 
elor of divinity degree is from Colgate-Rochester Divinity School in 
Rochester, NY. I hold the T.H.M. degree in pastoral psychology and 
the doctorate of ministry from the same institution. All of my post- 
high school studies have been at Baptist institutions of higher 
learning. 

From 1965 until 1970, I was the executive director of the Missis¬ 
sippi Council on Human Relations. This work had to do with race 
relations and civil rights. From 1970 to 1972, I was a graduate 
fellow and instructor in pastoral psychology at Colgate-Rochester. 

Also in 1970, I organized Communications Improvement, Inc., a 
private nonprofit corporation in Jackson, Mississippi, under a land¬ 
mark decision written by then Appellate Judge Warren Burger. 
This corporation became the licenseholder of WLBT Television, an 
NBC affiliate in Jackson. 

I served as president of the corporation until 1976. As the opera¬ 
tors of Mississippi’s leading broadcast facility, it was our task to de¬ 
velop the nation's first biracial television facility for a deep South 
area. We were successful in this endeavor, and today Jackson, MS, 
has the nation’s first black-owned major television station and a 
second station under the leadership of a black general manager. 

In 1976, I became the pastor of Prescott Memorial Baptist 
Church in Memphis, TN. Since 1981 I have been the pastor of the 
First Baptist Church in Rochester, NY, a congregation where I 
served as student minister while doing my theological studies. 

I was ordained in the Southern Baptist Convention, but now 
serve an American Baptist church. I am married and have four 
children. They attend public schools in Pittsford, NY. My wife is a 
family therapist. 

Along with my work assignments in race relations and ministry, 
since 1967 I have had the continuing involvement in hunger and 
poverty studies. In 1968, when Senators Jacob Javits and Robert 


88-374 0 - 89-10 



2996 


Kennedy asked me to help document hunger in the Mississippi 
Delta, I initiated the hunger studies that eventually led to the 
hungry children report. 

For the past 3 years, I have been a member of the physician task 
force on hunger out of the school of public health at Harvard Uni¬ 
versity. In 1978, I organized the field work for Hunger Revisited, a 
10-year review of federal food programs. This work was sponsored 
by the Field Foundation under the leadership of Dr. Leslie Dunbar. 

While my work and studies have offered me a broad range of ex¬ 
periences, my heritage is that of a southerner of east Tennessee Re¬ 
publicanism and the Evangelical Church. In September of 1985, I 
was invited to be one of about 35 clergy from across the country for 
a week at the Brookings Institution here in Washington, DC. 

The Brookings Conference for Leadership Clergy was on “How 
Government Makes Decisions.” One of the featured speakers for 
that conference was Appellate Judge Mr. Robert Bork. Judge 
Bork’s speech on “Religion and the Law,” he had given a similar 
speech at the University of Chicago in November 1984, and I would 
like to say that some of the questions that have been asked here 
this afternoon about the character of an individual, about his phi¬ 
losophy, it would be good if you didn’t feel too anxious and too sen¬ 
sitive about the issue of religion to look at those speeches, for they 
contain some answers to those questions which I have not heard 
forthcoming from other witnesses. They are terribly important 
speeches as regards the man’s philosophy in terms of the operation 
of government. 

In his Brookings’ speech, Judge Bork handled issues which are 
helpful with insight into his position on a number of concerns of 
the American people. The Judge was introduced as a distinguished 
former professor of law at Yale University, as the Solicitor General 
who fired Archibald Cox, as an appellate judge, and as the probable 
next nominee to the Supreme Court. 

He began his talk with a Johnny Carson-type monologue, the 
subject of which was his compulsive smoking. With a touch of 
humor, he mentioned the many warnings his doctor had given him 
on the dangers of his compulsion and his inability to do anything 
about it. There was both a touch of confession and humor as he 
told us that he really was saying that what he hoped we wouldn’t 
mind was that he would continue smoking while he lectured. 

Following this, he stated that he wanted us to know that his re¬ 
marks on religion were his thoughts on the subject as it related to 
society, and that they were not interested—or they were not in¬ 
tended to suggest something he practiced in his personal life. 

I would like to interject at this point that I do not, nor do I be¬ 
lieve that any of the clergy people at the Brookings Institution, 
would hold a religious test up to Mr. Bork, but I describe his com¬ 
ments here because I think that they set the context for under¬ 
standing some of his later statements. 

After saying that his discussion had to do not with what he prac¬ 
ticed in his personal life concerning religion, he went on to point 
out that he supposed that if a label had to be put on his views of 
religion, it would be that of the agnostic. He started to move then 
into the body of his speech, but he paused for a few seconds and 
stated that he thought he should correct his statement about being 



2997 


an agnostic. He said that he guessed it probably was not completely 
correct to label himself an agnostic. That he did believe in some 
form of religion, but that it was not something he could explain or 
describe. Anyway, he said that while he practiced no religion, still 
it would not be precisely correct to describe himself as an agnostic. 

Judge Bork then gave his speech and was followed by a respond¬ 
ent, Dr. James Dunn, the executive director for the Joint Baptist 
Committee on Public Affairs. The Judge’s address was filled with 
observations and conclusions that were in deep and wide disagree¬ 
ment with many of the clergy. Dr. Dunn’s response was critical and 
vigorous. Following his remarks, the floor was open for discussion. 

The questions were rapid and filled with emotion. Judge Bork’s 
responses were in like manner. The main emphasis had to do with 
Bork’s call for a new weighting between church and state. A pos¬ 
ture at variance with the belief and practice of most of the clergy 
present. This heated debate eventually became an entanglement of 
emotions and technicalities. 

At this point in the discussion, I attempted to return the focus to 
a more concrete issue, so I asked Bork to respond to an experience 
I had as a junior high school teacher at Edgewood Junior High 
School on Merritt Island in Florida in 1961. I taught there at that 
public school for one semester when I was transferring my theo¬ 
logical studies from Southeastern Seminary to Colgate-Rochester 
Divinity School. 

I described to Bork that it was the practice of the school where I 
taught to begin each day with what was called “home room devo¬ 
tions.” Each student was expected to take a turn at reading the 
Bible, sometimes leading in The Lord's Prayer, and always in 
giving salute to the American flag. The student participation was 
based on alphabetical order of the last name. 

One morning when I arrived at my desk a 13-year-old boy was 
waiting for me. He commented that it was his day to lead the devo¬ 
tions. He explained that he was Jewish and that his parents did 
not want him to lead in the devotions. He said that they did not 
wish for him to read the New Testament, as was the custom. 

I told him that he could read the Old Testament. He replied that 
his parents did not want him to participate in the devotions at all. 
That they believed that religious instruction should be at home and 
in the synagogue. 

The student and I had a friendly relationship, and I could tell 
that he was troubled by a possible split in authority between his 
parents and myself. He then asked if he had to do the reading. 

Aware that the young boy was caught between the authority of 
school and teacher on the one hand and parents and home on the 
other, I told him that he did not have to do the reading. He asked 
what I wanted him to do. What he meant by this question was that 
he wanted me to tell him whether or not he had to absent himself 
from the class and go stand in the hall while devotions were ob¬ 
served. This was the policy for those who did not wish to partici¬ 
pate. 

Again, I sensed his dilemma. He did not want to socially distance 
himself from his peers, all of whom I assume were Christian. 1 told 
him that he did not have to go stand in the hall, that he could take 
his seat while I or someone else would lead in the devotions. 



2998 


I asked then at the Brookings meetings if Judge Bork thought 
that a 13-year-old Jewish child should have to be submitted to this 
kind of conflict, hurt and social embarrassment in order to partici¬ 
pate in public education. 

Judge Bork in a terse voice and with a stem look on his face re¬ 
sponded to me: “Well, I suppose he got over it didn’t he?” I was 
shocked by both the style and content of Bork’s response. 

As I quickly analyzed his response, I realized that there was no 
reasonable reply I could make. I knew that I had touched some¬ 
thing in Bork that caused a disclosure of his true feelings, which 
reflected a repressed facet of his personality. Whatever it was, he 
was willing to subject the youngster to the vulnerability of conflict¬ 
ing authority between parents and teacher, school and synagogue, 
and to the embarrassment of social ostracism by his peers. 

The Chairman. Your time is up. Reverend, by a long shot. Can 
you summarize, please, the remainder of your statement, you 
know, within the next minute? 

Reverend Dean. There was an awkward silence for a few sec¬ 
onds, for me it was an eternity, then Judge Bork gave his own 
answer. He said that when he was a young boy he had been ex¬ 
posed to a variety of religious beliefs and that it didn’t seem to do 
him any harm. 

I do have a number of pages in the rest of my speech, and I will 
at this time just submit them for the record and will not read 
them. 

The Chairman. They will all be placed in the record as if read. 

Reverend Dean. But, if you have any questions, I would be 
happy to respond. And I would like to say again that I think that if 
this panel passes up the issue of Judge Bork’s position on church 
and state that you, in fact, do a disservice country, to the people of 
America who are very religious people and who have a lot at stake. 
His position on that is I think absolutely unacceptable and it can 
be seen an answer to some of the philosophical and personal ques¬ 
tions you have asked here today. 

I would like to add one further remark. I do not—I have been 
asked by many people am I saying by this statement that Judge 
Bork is anti-Semitic. My unequivocal answer to that is no, I am not 
saying he is anti-Semitic. But what I am saying is this, and it can 
be seen in this speech as well as in this incident. He espouses a 
philosophical understanding of government and system which 
leaves open the door for others to be anti-Semitic and for others to 
be racist. While the man personally himself has a record that has 
been testified to by many fine people, of an attitude that is ecu¬ 
menical and worthy, he espouses a system which many of us have 
lived under and which if we had to continue with in the 1960’s a 
lot of people would still be locked up in jail because those cases 
would not have been removed to the Federal court, they would 
have been left in the courthouses and the city halls of very racist 
and very bigoted governments. 

[Prepared statement follows:] 



TESTIMONY OF THE REVEREND DR. KENNETH L. DEAN 
BEFORE THE UNITED STATES JUDICIARY COMMITTEE 
SEPTEMBER 28, 1987 


First Baptist Church Of Rochester 
175 Allen's Creek Rd. 
Rochester, NY 14618 



3000 


MR. CHAIRMAN AND DISTINGUISHED MEMBERS OF THE SENATE, I THANK YOU 
FOR THE OPPORTUNITY OF COMING BEFORE YOU TODAY. I AM KENNETH L. DEAN OF 
3873 ELMWOOD AVENUE, ROCHESTER, NEW YORK, A NATIVE OF ROGERSVILLE, 
TENNESSEE. I ATTENDED PUBLIC SCHOOLS IN MARYVILLE, TENNESSEE. MY 
UNDERGRADUATE COLLEGE WORK IS IN PHILOSOPHY FROM CARSON NEWMAN COLLEGE, 
A SOUTHERN BAPTIST SCHOOL IN JEFFERSON CITY, TENNESSEE. I ATTENDED 
SOUTHEASTERN SEMINARY IN WAKE FOREST, NORTH CAROLINA. MY BACHELOR OF 
DIVINITY IS FROM COLGATE ROCHESTER DIVINITY SCHOOL IN ROCHESTER, NEW 
YORK. I HOLD THE TH. M. DEGREE IN PASTORAL PSYCHOLOGY AND THE DOCTORATE 
OF MINISTRY FROM THE SAME INSTITUTION. ALL OF MY POST HIGH SCHOOL 
STUDIES HAVE BEEN AT BAPTIST INSTITUTIONS OF HIGHER LEARNING. 

FROM 1965 UNTIL 1970 I WAS THE EXECUTIVE DIRECTOR OF THE 
MISSISSIPPI COUNCIL ON HUMAN RELATIONS. THIS WORK HAD TO DO WITH RACE 
RELATIONS AND CIVIL RIGHTS. FROM 1970 TO 1972, I WAS A GRADUATE FELLOW 
AND INSTRUCTOR IN PASTORAL PSYCHOLOGY AT COLGATE ROCHESTER. ALSO, IN 
1970 I ORGANIZED COMMUNICATIONS WROVEMENT, INC., A PRIVATE NON-PROFIT 
CORPORATION IN JACKSON, MISSISSIPPI. UNDER A LANDMARK DECISION WRITTEN 
BY THEN APPELLATE JUDGE, WARREN BURGER, THIS CORPORATION BECAME THE 
LICENSE HOLDER OF WLBT TELEVISION, AN NBC AFFILIATE IN JACKSON. I 
SERVED AS PRESIDENT OF THE CORPORATION UNTIL 1976. AS THE OPERATORS OF 
MISSISSIPPI'S LEADING BROADCAST FACILITY, IT WAS OUR TASK TO DEVELOP 
THE NATIONS FIRST BI-RACIAL TELEVISION FACILITY FOR A DEEP SOUTH AREA. 
WE WERE SUCCESSFUL IN THIS ENDEAVOR AND TDDAY JACKSON, MISSISSIPPI HAS 
THE NATIONS FIRST BLACK-OWNED MAJOR TELEVISION STATION AND A SECOND 
STATION UNDER THE LEADERSHIP OF A BLACK GENERAL MANAGER. IN 1976, I 
BECAME THE PASTOR OF PRESCOTT MEMORIAL BAPTIST CHURCH IN MEMPHIS. SINCE 


1 



3001 


1981, I HAVE BEEN THE PASTOR OF THE FIRST BAPTIST CHURCH IN ROCHESTER, 
NEW YORK, A CONGREGATION WHERE I SERVED AS STUDENT MINISTER WHILE DOING 
MY THEOLOGICAL STUDIES. I WAS ORDAINED IN THE SOUTHERN BAPTIST 
CONVENTION, BUT NDW SERVE AN AMERICAN BAPTIST CHURCH. I AM MARRIED AND 
HAVE FOUR CHILDREN. THEY ATTEND PUBLIC SCHOOLS IN PITTSFORD, NEW YORK. 
MY WIFE IS A FAMILY THERAPIST. 

ALONG WITH MY WORK ASSIGNMENTS IN RACE RELATIONS AND MINISTRY, 
SINCE 1967 I HAVE HAD A CONTINUING INVOLVEMENT IN HUNGER AND POVERTY 
STUDIES. IN 1968 WHEN SENATORS JACOB JAVITS AND ROBERT KENNEDY ASKED ME 
TO HELP DOCUMENT HUNGER IN THE MISSISSIPPI DELTA, I INITIATED THE 
HUNGER STUDIES THAT EVENTUALLY LED TO THE HUNGRY CHILDREN REPORT , FOR 
THE PAST THREE YEARS, I HAVE BEEN A MEMBER OF THE PHYSICIAN TASK FORCE 
ON HUNGER, OUT OF THE SCHOOL OF PUBLIC HEALTH AT HARVARD UNIVERSITY. IN 
1978, I ORGANIZED THE FIELD WORK FOR "HUNGER REVISITED", A TEN YEAR 
REVIEW OF FEDERAL FOOD PROGRAMS. THIS WORK WAS SPONSORED BY THE FIELD 
FOUNDATION UNDER THE LEADERSHIP OF DR. LESLIE DUNBAR. 

WHILE MY WORK AND STUDIES HAVE AFFORDED ME A BROAD RANGE OF 
EXPERIENCES, MY HERITAGE IS THAT OF A SOUTHERNER, OF EAST TENNESSEE 
REPUBLICANISM AND THE EVANGELICAL CHURCH. 

IN SEPTEMBER OF 1985, I WAS INVITED TO BE ONE OF ABOUT 35 CLERGY 
FROM ACROSS THE COUNTRY FOR A WEEK AT THE BROOKINGS INSTITUTION. THE 
BROOKINGS CONFERENCE FOR LEADERSHIP CLERGY WAS ON "HOW GOVERNMENT MAKES 
DECISIONS." ONE OF THE FEATURED SPEAKERS FOR THAT CONFERENCE WAS 
APPELLATE JUDGE, MR. ROBERT BORK. JUDGE BORK'S SPEECH WAS ON “RELIGION 
AND THE LAW." HE HAD GIVEN A SIMILAR SPEECH AT THE UNIVERSITY OF 
CHICAGO IN NOVEMBER OF 1984. IN HIS BROOKINGS SPEECH, JUDGE BORK 


2 



3002 


HANDLED ISSUES WHICH ARE HELPFUL WITH INSIGHT INTO HIS POSITION ON A 
NUMBER OF CONCERNS OF THE AMERICAN PEOPLE. 

BORK WAS INTRODUCED AS A DISTINGUISHED, FDRMER PROFESSOR OF LAW AT 
YALE UNIVERSITY, AS THE SOLICITOR GENERAL WHO FIRED ARCHIBALD COX, AS 
AN APPELLATE JUDGE AND AS THE PROBABLE NEXT NOMINEE TO THE SUPREME 
COURT. HE BEGAN HIS TALK WITH A JOHNNY CARSON TYPE MONOLOGUE, THE 
SUBJECT OF WHICH WAS HIS COMPULSIVE SMOKING. WITH A TOUCH OF HUMOR, HE 
MENTIONED THE MANY WARNINGS HIS DOCTOR HAD GIVEN HIM ON THE DANGERS OF 
HIS COMPULSION AND HIS INABILITY TO DO ANYTHING ABOUT IT. THERE WAS 
BOTH A TOUCH OF CONFESSION AND HUMOR AS HE TOLD US THAT WHAT HE REALLY 
WAS SAYING WAS THAT HE HOPED WE WOULDN'T MIND HIS PUFFING AWAY WHILE HE 
LECTURED. FOLLOWING THIS, HE STATED THAT HE WANTED US TO KNOW THAT HIS 
REMARKS ON RELIGION WERE HIS THOUGHTS ON THE SUBJECT AS IT RELATED TO 
SOCIETY, AND THAT THEY WERE NOT INTENDED TO SUGGEST SOMETHING HE 
PRACTICED IN HIS PERSONAL LIFE. HE WENT ON TO POINT OUT THAT HE 
SUPPOSED THAT, IF A LABEL HAD TO BE PUT ON HIS VIEWS ON RELIGION, IT 
WOULD BE THAT OF THE AGNOSTIC. HE STARTED TO MOVE INTO THE BODY OF HIS 
SPEECH, THEN PAUSED FOR A FEW SECONDS, AND STATED THAT HE THOUGHT HE 
SHOULD CORRECT HIS STATEMENT ABOUT BEING AN AGNOSTIC. HE SAID THAT HE 
GUESSED IT PROBABLY WAS NDT COMPLETELY CDRRECT TO LABEL HIMSELF AN 
AGNOSTIC, THAT HE DID BELIEVE IN SOME FORM OF RELIGION, BUT THAT IT WAS 
NOT SOMETHING HE COULD EXPLAIN OR DESCRIBE. ANYWAY, HE SAID THAT WHILE 
HE PRACTICED NO RELIGION, STILL IT WOULD NOT BE PRECISELY CORRECT TO 
DESCRIBE HIMSELF AS AN AGNOSTIC. 

JUDGE BORK THEN GAVE HIS SPEECH AND WAS FOLLOWED BY A RESPONDENT, 
DR. JAMES DUNN, EXECUTIVE DIRECTOR FOR THE JOINT BAPTIST COMMITTEE ON 


3 



3003 


PUBLIC AFFAIRS. THE -JUDGE’S ADDRESS WAS FILLED WITH OBSERVATIONS AND 
CONCLUSIONS THAT WERE IN DEEP AND WIDE DISAGREEMENT WITH MANY OF THE 
CLERGY. DUNN'S RESPONSE WAS CRITICAL AND VIGOROUS. FOLLOWING DUNN'S 
REMARKS, THE FLOOR WAS OPENED FOR DISCUSSION. THE QUESTIONS WERE RAPID 
AND FILLED WITH EMOTION. BORK'S RESPONSES WERE IN LIKE MANNER. THE MAIN 
EMPHASIS HAD TO DO WITH BORK'S CALL FOR A NEW WEDDING BETWEEN CHURCH 
AND STATE, A POSTURE AT VARIANCE WI T M THE BELIEF AND PRACTICE OF MOST 
OF THE CLERGY. THIS HEATED DEBATE EVENTUALLY BECAME AN ENTANGLEMENT OF 
EMOTIONS AND TECHNICALITIES. 

AT THIS POINT IN THE DISCUSSION, I ATTEMPTED TO RETURN THE FOCUS 
TO A MORE CONCRETE ISSUE, SO I ASKED 80RK TO RESPOND TO AM EXPERIENCE I 
HAD AS A JUNIOR HIGH SCHOOL TEACHER AT EDGEWOOD JUNIOR HIGH ON MERRIT 
ISLAND IN FLORIDA IN 1961. I TAUGHT THERE FOR ONE SEMESTER WHEN I 
TRANSFERRED MY THEOLOGICAL STUDIES FROM SOUTHEASTERN TO COLGATE 
ROCHESTER. 

I DESCRIBED TO BORK THAT IT WAS THE PRACTICE OF THE SCHOOL TO 
BEGIN EACH DAY WITH WHAT WAS CALLED "HOME ROOM DEVOTIONS." EACH STUDENT 
WAS EXPECTED TO TAKE A TURN AT READING THE BIBLE, SOMETIMES LEADING IN 
THE LORD'S PRAYER AND ALWAYS IN GIVING THE SALUTE TO THE FLAG. THE 
STUDENT PARTICIPATION WAS BASED ON ALPHABETICAL ORDER OF THE LAST NAME. 
ONE MORNING, WHEN I ARRIVED AT MY DESK, A THIRTEEN YEAR OLD BOY WAS 
WAITING FOR ME. HE COMMENTED THAT IT WAS HIS OAY TO LEAD THE DEVOTIONS. 
HE EXPLAINED THAT HE WAS JEWISH AND THAT HIS PARENTS DID NOT WANT HIM 
TO LEAD IN THE DEVOTIONS. HE SAID THAT THEY DID NOT WISH FOR HIM TO 
READ THE NEW TESTAMENT, AS WAS THE CUSTOM. I TOLD HIM THAT HE COULD 
READ THE OLD TESTAMENT. HE REPLIED THAT HIS PARENTS DID NOT WANT HIM TO 


4 



3004 


PARTICIPATE IN THE DEVOTIONS AT ALL, THAT THEY BELIEVED THAT RELIGIOUS 
INSTRUCTION SHOULD BE AT HOfC AND IN THE SYNAGOGUE. THE STUDENT AND I 
HAD A FRIENDLY RELATIONSHIP, AND I COULD TELL THAT HE NAS TROUBLED BY A 
POSSIBLE SPLIT IN AUTHORITY BETWEEN HIS PARENTS AND MYSELF. HE THEN 
ASKED, IF HE HAD TO DO THE REAOIHG. AWARE THAT THE YOUNG BOY NAS CAUGHT 
BETWEEN THE AUTHORITY OF SCHOOL AND TEACHER ON THE ONE HAND AND PARENTS 
AND HOME ON THE OTHER, I TOLD HIM THAT HE DID NOT HAVE TO DO THE 
READING. HE ASKED WHAT I WANTED HIM TO DO. WHAT HE MEANT BY THIS 
QUESTION WAS THAT HE WANTED ME TO TELL HIM IF HE HAD TO ABSENT HIMSELF 
FROM THE CLASS AND STAND IN THE HALL WHILE DEVOTIONS WERE OBSERVED. 
THIS WAS THE POLICY FOR THOSE WHO DID NOT WISH TO PARTICIPATE. AGAIN, I 
SENSED HIS DILEMMA, HE DID NOT WANT TO SOCIALLY DISTANCE HIMSELF FROM 
HIS PEERS, ALL OF WHOM I ASSUMED WERE CHRISTIAN. I TOLD HIM THAT HE DID 
NOT HAVE TO STAND IN THE HALL, THAT HE COULD TAKE HIS SEAT WHILE I OR 
SOMEONE ELSE LED THE DEVOTIONS. 

I ASKED JUDGE BORK IF HE THOUGHT A 13 YEAR OLD JEWISH CHILD SHOULD 
HAVE TO BE SUBMITTED TO THIS KIND OF CONFLICT, HURT AND SOCIAL 
EMBARRASSMENT IN ORDER TO PARTICIPATE IN PUBLIC EDUCATION. JUDGE BORK, 
IN A TERSE VOICE, AND WITH A STERN LOOK ON HIS FACE RESPONDED, "WELL, I 
SUPPOSE HE GOT OVER IT. DIDN'T HE?" I WAS SHOCKED BY BOTH THE STYLE AND 
CONTENT OF BORK’S RESPONSE. AS I QUICKLY ANALYZED HIS RESPONSE, I 
REALIZED THAT THERE WAS NO REASONABLE REPLY I COULD MAKE. I KNEW THAT I 
HAD TOUCHED SOMETHING IN BORK THAT CAUSED A DISCLOSURE OF HIS TRUE 
FEELINGS, WHICH REFLECTED A REPRESSED FACET OF HIS PERSONALITY. 
WHATEVER IT WAS, HE WAS WILLING TO SUBJECT THE YOUNGSTER TO THE 
VULNERABILITY OF CONFLICTING AUTHORITY BETWEEN PARENTS AND TEACHER, 


5 



3005 


SCHOOL AND SYNAGOGUE, AND TO THE EMBARRASSMENT OF SOCIAL OSTRACISM BY 
HIS PEERS. THERE WAS AN AWKWARD SILENCE FOR A FEW SECONDS, FOR ME AN 
ETERNITY, THEN BORK GAVE HIS OWN ANSWER. HE SAID THAT WHEN HE WAS A 
YOUNG BOY HE HAD BEEN EXPOSED TO A VARIETY OF RELIGIOUS BELIEFS AND 
THAT IT DID NOT SEEM TO DO HIM ANY HARM. 

AFTER REVIEWING BORK'S SPEECH, I HAVE COME TO BELIEVE THAT HIS 
HANDLING OF THIS SITUATION ACCURATELY DESCRIBES BOTH HIS PERSONAL 
FEELINGS AND HIS POSTURE AS A JURIST. HE SUBORDINATES THE INDIVIDUAL TO 
THE SYSTEM OF GOVERNMENT, EVEN AT THE EXPENSE OF THE FREE EXERCISE AND 
NO ESTABLISHMENT CLAUSE. I BELIEVE THAT THERE WAS NOTHING EITHER 
REASONABLE OR COMPELLING IN THE INTEREST OF THE GOVERNMENT OR THE 
SCHOOL SYSTEM THAT NECESSITATED THE VIOLATION OF THE RIGHTS AND FREEDOM 
OF THIS YOUNG, JEWISH LAD AND HIS PARENTS. JUST AS THAT WAS THE CASE 
THEN, I KNOW OF NOTHING IN AMERICAN SOCIETY TODAY THAT NECESSITATES A 
RETURN TO THIS UNDESIRABLE CONDITION THAT JUDGE 80RK'S POSTURE ON 
RELIGION AND LAW SUGGESTS. 

JUDGE BORK'S VIEWS ON "RELIGION AND LAW" DESERVE FURTHER COMMENT 
IN THAT THEY WEIGH HEAVILY UPON THE SEPARATION OF CHURCH AND STATE. AT 
THE TIME OF THE FRAMING OF THE CONSTITUTION, BAPTISTS LED THE FIGHT FOR 
THE DOCTRINE OF SEPARATION. THE BAPTISTS WON THIS BATTLE, AND WHAT THEY 
HAD IN MIND IS CLEAR. BETWEEN THE EARLY SEVENTEENTH AND LATE 18TH 
CENTURIES, BAPTISTS IN EUROPE AND AMERICA WERE THE VICTIMS OF HARSH 
DISCRIMINATION, MANY TO THE POINT OF MARTYRDOM, DUE TO THEIR 
UNWILLINGNESS TO SUBMIT TD A STATE DOMINATED CHURCH. THEIR RELIGIOUS 
BELIEF WAS NOT UNORTHODOX, BUT THEIR UNDERSTANDING OF SOCIETY AND 
RELIGION WAS SUCH THAT THEY BELIEVED EFFECTIVE RELIGION WAS DEPENDENT 


6 



3006 


UPON THE RIGHT OF THE INDIVIDUAL TO JOIN WITH OTHERS IN WORSHIP AS THEY 
WERE LED BY THE SPIRIT. FOR THEM. THE SPIRIT LED LIFE WAS SOMETIMES IN 
CONFLICT WITH THE STATE. IN WHATEVER COUNTRY THEY LIVED, THESE EARLY 
BAPTISTS CONSIDERED THEMSELVES TO BE LOYAL PATRIOTS. BUT, THEY WERE NOT 
WILLING TO ACCEPT ANY GOVERNMENT’S CONTROL OF RELIGION WHICH MARKED 
THEM AT BIRTH AS BELONGING TO A GIVEN RELIGIOUS ORDER. FOR THEM, TRUE 
RELIGION HAD TO BE THE DECISION OF THE INDIVIDUAL ALONE AFTER THE 
INDIVIDUAL REACHES AN AGE OF UNDERSTANDING. THIS COMPLETE SEPARATION IS 
WHAT BAPTISTS ARGUED FOR IN AMERICA. THE RECORD OF HISTORY SUPPORTS 
THEIR CLAIM, FOR IMMEDIATELY FOLLOWING THE SIGNING OF THE CONSTITUTION, 
THE INDIVIDUAL STATES BEGAN DISESTABLISHING THEIR STATE DESIGNATED 
CHURCHES. 

IN SUMMARY, THIS SEPARATION MEANT (1) NO CREDAL TEST FOR 
PARTICIPATION IN SOCIETY, (2) SEPARATE TREASURERS FOR CHURCH AND THE 
GOVERNMENT, (3) EDUCATION FREE FROM RELIGIOUS COERCION, AND (4) THE 
A8SENCE OF ANY ORGANIZED POWER CONNECTION BETWEEN THE OFFICES OF 
GOVERNMENT AND THE CHURCH. UNLIKE WHAT IS FOUND IN SOME EUROPEAN 
COUNTRIES, PARTICULARY IN MARXIST GOVERNMENTS, THIS SEPARATION PROVIDED 
FOR FRIENDLY RELATIONS BETWEEN CHURCH AND STATE. SEPARATION DOES NOT 
IMPLY A HOSTILITY BY THE CHURCH TOWARD GOVERNMENT, NOR DOES IT ALLOV 
FOR THE SUBORDINATION OF THE CHURCH TO THE STATE. AS DR. WINTHROP S. 
HUDSON, PERHAPS, AMERICA’S LEADING PROTESTANT CHURCH HISTORIAN, STATES 
WE HAVE THE SEPARATION OF THE INSTITUTIONS OF GOVERNMENT AND CHURCH 
BUT A DIALOGUE BETWEEN POLITICS AND RELIGION. 

JUDGE BORK STATES IN HIS SPEECHES ON RELIGION THAT HE AGREES WIT 
THE THOUGHT OF RICHARD JOHN NEUHAUS, AS IT IS SET FORTH IN HIS BOOK 


7 



3007 


THE NAKED PUBLIC SQUARE . THE BORK/NEUHAUS THESIS IS THAT THE SUPREME 
COURT OF THE LAST FOUR DECADES HAS STRIPPED THE GOVERNMENT OF ALL 
"SYMBOL AND SUBSTANCE" OF RELIGION. THE STATISTICS ON RELIGION IN 
AMERICA, SIMPLY CONTRADICT THIS THESIS. WHEN THE CONSTITUTION WAS 
FRAMED, THE AFFILIATION WITH A CHURCH OR ORGANIZED RELIGION WAS JUST 
UNDER 10 PER CENT OF THE TOTAL POPULATION. AS THE DISESTABLISHMENT OF 
THE STATE CHURCHES TOOK PLACE, CHURCH MEMBERSHIP BEGAN TO INCREASE. IT 
HAS MOVED FROM THE 10 PER CENT MARK OF 1800 TO A PRESENT DAY MEMBERSHIP 
OF 65 PER CENT OF THE TOTAL POPULATION. IT IS CLEAR FROM THESE 
STATISTICS THAT THE "FREE CHURCH TRADITION" OF AMERICA HAS LED TO A 
TREMENDOUS INCREASE IN RELIGION OVER WHAT WE EXPERIENCED UNDER THE 
STATE CHURCHES OF THE COLONIAL PERIOD. THE VOLUNTARY ASSOCIATION OF 
AMERICAN LIFE IN RELIGION, WHEN COMPARED WITH THE DISMAL RECORD OF 
STATE CONTROLLED CHURCHES IN EUROPE, PROVES BEYOND ALL QUESTION THAT 
ORGANIZED RELIGION IN AMERICA, AS IMPERFECT AS IT IS, REMAINS A FAR 
BETTER PATTERN THAN WHAT IS FOUND ANYWHERE IN THE WORLD. 

JUDGE BORK ASSERTS IN HIS SPEECHES ON RELIGION, "THERE MAY BE IN 
MAN AN INERADICABLE LONGING FOR THE TRANSCENDENT. IF RELIGION IS 
OFFICIALLY REMOVED FROM PUBLIC CELEBRATION, OTHER TRANSCENDENT 
PRINCIPLES, SOME OF THEM VERY UGLY INDEED, MAY REPLACE THEM." HE GOES 
ON TO COMPLIMENT NEUHAUS AND ADDS, “THE PUBLIC SQUARE WILL NOT REMAIN 
NAKED. IF RELIGION DEPARTS, SOME OTHER PRINCIPLE — PERHAPS POLITICAL 
OR RACIAL — WILL ARRIVE." 

AGAIN, BORK, HAS TOO NARROW A VIEW OF RELIGION. HE CLAIMS THAT THE 
SYMBOLS OF RELIGION AND THE OBSERVANCE OF RELIGIOUS RITUAL MUST BE RE¬ 
INTRODUCED INTO THE PUBLIC SQUARE (GOVERNMENT) LEST THE VOID BE FILLED 


8 




3008 


WITH EVIL. HOWEVER, IM THE PROPHET ISAIAH WE HAVE A DIRECT STATEMENT 
ABOUT THE CONDITION BORK ATTEMPTS TO ADDRESS. IN ISAIAH 58, THE JEWISH 
PEOPLE HAVE RETURNED FROM CAPTIVITY IN BABYLON AND ARE REBUILDING THEIR 
CITY AND COMMUNAL LIFE (THE PUBLIC SQUARE). THEY "HANG THEIR HEADS" AND 
"LIE DOWN IN SACKCLOTH AND ASHES", (PRAYER AND RITUALISTIC CELEBRATION) 
BUT GOD DOES NOT HEAR THEIR PRAYER OR VISIT THEM FOR THEY EMPHASIZE 
BUSINESS OVER RELIGION, OPPRESS THEIR WORKMEN FOR THEIR OWN PROFIT, 
QUARREL AND STRIKE THE POOR. THE PROPHET GOES ON TO TELL THE PEOPLE 
THAT GOD WILL VISIT THEM WHEN THEY IDENTIFY WITH THE OPPRESSED, SHARE 
THEIR BREAD WITH THE HUNGRY, SHARE THEIR HOMES WITH THE HOMELESS, AND 
CLOTHE THE NAKED. GOD MEETS THE PEOPLE, (HE APPEARS IN THE PUBLIC 
SQUARE), NOT IN THEIR CEREMONY AND REPETITIOUS PRAYERS, RATHER WHEN 
THEY IDENTIFY WITH THE POOR. THIS IS TRUE WORSHIP. AS STRANGE AS IT MAY 
SEEM, ACCORDING TO THIS TEXT, GOD IS A SECULAR HUMANIST! GOD MAKES 
CARING FOR HUMAN NEEDS THE PRE-CONDITION FOR HIS APPEARANCE IN THE 
PUBLIC SQUARE. THIS FOCUS IS THE MAJOR COMPONENT OF SECULAR HUMANISM. 
GOD NOT ONLY DEMANDS THE FOCUS ON HUMAN NEED, HE REJECTS CEREMONY, 
RITUAL AND SYMBOL AS WORTHY WORSHIP IN AND OF ITSELF. GOD CALLS FOR 
THAT WHICH BORK AND THE RIGHT WING EVANGELICALS FEAR TO TAKE UP 
OCCUPANCY IN THE PUBLIC SQUARE. THAT WHICH TODAY IS CALLED SECULAR 
HUMANISM, ACCORDING TO THE BIBLE, IS THE PREREQUISITE FOR THE 
APPEARANCE OF THE TRANSCENDENT. 

THIS WEEK BY DAUGHTER CARRIED CANS OF FOOD TO SCHOOL FOR THE LOCAL 
FOOD PANTRY. THIS WAS A RELIGIOUS ACT, BUT IT DOES NOT VIOLATE THE 
SEPARATION OF CHURCH AND STATE. FOR THE LAST THREE YEARS, I HAVE 
TRAVELED FROM ONE END OF OUR COUNTRY TO THE OTHER STUDYING PROBLEMS OF 


9 



3009 


HUNGER AND THE HOMELESS. EVERYWHERE I WENT I FOUND MAINLINE CHURCHES 
AND SYNAGOGUES FEEDING, CLOTHING AND HOUSING THE POOR. RARELY, IF AT 
ALL, DID I FIND THE RIGHT WING EVANGELICALS, WHOM BORK SUPPORTS IN 
THEIR ATTEMPT TO GAIN CONTROL OF THE PUBLIC SQUARE INVOLVED IN THESE 
SERVICES TO THE POOR. I ASSERT THAT RELIGION IN AMERICA IS NOT AS SICK 
OR ABSENT AS BORK AND NEUHAUS FEAR. 

IN CLOSING, I WOULD LIKE TO ADDRESS A COMMENT THAT APPEARED IN 
THE NEWSPAPER AND WHICH WAS ATTRIBUTED TO SENATOR HEFLIN. THE REPORT 
SAID THAT THE SENATOR WISHED THAT HE WAS A PSYCHIATRIST INSTEAD OF A 
LAWYER, SO HE COULD UNDERSTAND JUDGE BORK. IT IS CLEAR TO ME THAT JUDGE 
BORK IS AN ACTIVIST. THERE IS NOTHING WRONG WITH HAVING AN ACTIVIST ON 
THE SUPREME COURT, EXCEPT THAT IT IS NOT CLEAR WHAT BORK’S GOALS ARE. 
ONE NEEDS TO KNOW THE GOALS OF AN ACTIVIST. ARE HIS GOALS THOSE OF THE 
RIGHT WING EVANGELICALS? THIS SEEMS VERY UNLIKELY, SINCE SECTARIAN 
EVANGELICALS ABHOR ANY ASSOCIATION WITH VAGUE RELIGION TINGED WITH 
AGNOSTICISM. FOR DECADES THEY HAVE CRITICIZED LI8ERAL RELIGION ON THESE 
GROUNDS. THE ONLY TWO POINTS OF AGREEMENT BETWEEN THE SECTARIAN 
EVANGELICALS AND BORK THAT I CAN FIND ARE THEIR CRITICISM OF THE 
SUPREME COURT DECISIONS AND THE RECORD OF EACH ON RACE. AND, IT IS THE 
AGREEMENT ON THESE TWO POINTS THAT GIVES BLACKS AND PROGRESSIVE MINDED 
WHITES JUST CAUSE FOR CONCERN. IN BORK’S IDENTIFICATION WITH THE 
SEGREGATIONIST EVANGELICALS, WE SEE A MAN WHO HAS MOVED FROM ONE 
POLITICAL CONVICTION TO ANOTHER IN SEARCH OF A POLITICAL CONSTITUENCY. 
HE EM8RACES THE EXTREMES OF WHAT IS USUALLY CONSIDERED OPPOSITE 
POLITICAL PHILOSOPHIES AND COMBINES THEM INTO A POSITION THAT REFLECTS 
NEITHER OF THE DOMINANT POLITICAL PARTIES IN AMERICA. IF I WERE A 


10 



3010 


PERSON MHO WANTED TO SEE THE APPOINTMENT OF A JURIST TO THE HIGH COURT, 
MHO HAS THE POTENTIAL FOR CREATING DIVISIVENESS, CONFLICT AND SOCIAL 
DISCORD IN AICRICAN LIFE, THEN, I MOULD SUPPORT JUDGE BORK. HIS RECORD 
ON RACE, HIS STATEMENT CONCERNING PRIVACY, HIS POSITION CONCERNING 
WOMEN'S RIGHTS, HIS STANCE ON CHURCH AND STATE, AND HIS ATTITUDE TOWARD 
THE INDIVIDUAL COMBINE WITH HIS AMORPHOUS POLITICAL STANCE AND STYLE IN 
A HAY THAT MAKES HIM A HIGH RISK NOMINEE. AT THIS JUNCTURE IN OUR 
HISTORY, THERE IS NO NEED FOR US TO TAKE SUCH A RISK. I HOPE THAT THE 
WISDOM OF OUR SENATE MILL CONCUR IN THIS JUDGEMENT. IF NOT, WE WILL 
HOLD JUDGE BORK IN OUR PRAYERS, AS ME DO ALL OFFICIALS IN THE PUBLIC 
SQUARE. 


II 



3011 


The Chairman. Thank you very much. 

Senator Thurmond. 

Senator Thurmond. I yield to Senator Specter. 

The Chairman. Senator Specter. 

Senator Specter. Reverend Dean, you ran out of time in the 
midst of your description of the encounter with Judge Bork. I 
would like you to finish it. 

Reverend Dean. The whole paper? 

Senator Specter. No, specifically the discussion you had with 
Judge Bork. As I understand it, this was an event where you per¬ 
sonally participated. 

Reverend Dean. That’s correct. 

Senator Specter. So you're an eyewitness. 

Reverend Dean. That’s correct. 

Senator Specter. You made a comment and Judge Bork made a 
response within your presence and your hearing. 

Reverend Dean. That’s correct. 

Senator Specter. Had you finished your description of that 
event? 

Reverend Dean. I finished my description of that exchange con¬ 
cerning his response to the issue of a young Jewish boy not want¬ 
ing to participate in devotions. 

Senator Specter. Well, you said there was an eternity, after he 
made his comment, that he’ll get over it, something to that effect. 
What did he say specifically? 

Reverend, do you recall? 

Reverend Dean. I’ve written it down here. 

“Well, I suppose he got over it, didn’t he?” 

Senator Specter. All right. Then you said it seemed like an eter¬ 
nity to you before something else was said or something else oc¬ 
curred. What happened next? 

I believe it was at that point that you ran out of time. 

Reverend Dean. The next thing that happened was—I think the 
hands and the voices of the people in the meeting were cuffed, be¬ 
cause how do you respond to this? This is a nonrational statement. 
And how can you give a rational response- 

Senator Specter. Reverend, aside from your characterization of 
it, what happened next? Who said what? 

Reverend Dean. What happened next was Judge Bork spoke. 

Senator Specter. And what did he say? 

Reverend Dean. My summarization of what he said was that he, 
himself- 

Senator Specter. Have you written it down? 

Reverend Dean. Yes, yes. He said that when he, meaning Judge 
Bork, was a young boy, he had been exposed to a variety of reli¬ 
gious beliefs and that it did not seem to do him any harm. 

Senator Specter. And what, if anything, was said next? 

Reverend Dean. I think someone else asked another question. 

Senator Specter. Do you recall what that question was? 

Reverend Dean. No, I do not. 

Senator Specter. Did anything more occur at this meeting 
beyond what you have described, as to this specific exchange? 

Reverend Dean. As to this specific exchange, no. I think my 
recall of the meeting is that it had been so filled with emotion and 



3012 


anger and debate, which was very vigorous, that there was a desire 
to kind of wind it down. 

Senator Specter. And then it did wind down? 

Reverend Dean. It did, in a few minutes. 

Senator Specter. Reverend Dean, you have described a situation 
where you have participated or been the spiritual leader in what 
essentially is a school prayer exchange, correct? 

Reverend Dean. That’s correct, and that’s what I was attempting 
to find out from Judge Bork, what his position was on that. 

Senator Specter. And are those who participate in the exchange, 
including the young Jewish boy of 13 whom you described, given 
the option of participating or not? 

Reverend Dean. This was in 1961, you understand, and things 
have been changed since then. Yes, if they didn’t want to partici¬ 
pate, they could absent themselves from the room and stand in the 
hall. I was not aware of the religious belief of anybody in the class. 
I went into the class during the middle of the year and this hap¬ 
pened some 2 or 3 weeks after I had been there. 

As it turned out, my assumption was later that this was the only 
Jewish kid in the class, that the rest of them were Christians. 

Senator Specter. You had not known that at the time? 

Reverend Dean. No. 

Senator Specter. Had you known it, what would your method 
have been for dealing with the situation? 

Reverend Dean. If I had known it, I would have talked to him 
beforehand. 

Senator Specter. Mr. Chairman, may I have a moment or two 
more? 

The Chairman. Sure. 

Senator Specter. You have described a situation in 1961, Rever¬ 
end Dean, and you have described it in very sympathetic terms. 
What is your preference for the practices with school prayer in 
1961 or the practices prohibiting vocal prayer today? 

Reverend Dean. As I have said further on in this text, I see no 
compelling reason that a kid’s rights or his family’s rights should 
be violated in this fashion. My preference would be for a strong 
separation of church and state, with the function of religion re¬ 
maining in the home, in the synagogue, and the church just as this 
boy indicated. I think that Judge Bork makes what I’m sure people 
in America will find a strange argument for a reclothing of govern¬ 
ment in a religious garb, with symbol and substance, he says. By 
this, of course, he is meaning bringing ritual and this kind of thing 
back into the arena of government. 

I think the American people ought to know that and the implica¬ 
tions of it. He is suggesting that we move toward basically a Euro¬ 
pean style of church and state relationships. But the church in 
America, and religion in America, is far more vigorous and far 
more vital than anywhere in the world. I think that when we 
tamper with that, we’re tampering with something that is very 
dear to the success of what’s made America great. 

Senator Specter. Well, Reverend Dean, where do you find that 
in Judge Bork’s writings or statements? He has submitted to this 
committee the text of two speeches, one at the University of Chica¬ 
go— 



3013 


Reverend Dean. Correct. 

Senator Specter [continuing]. And one at the Brookings Insti¬ 
tute, both of which I have read and reread and re-reread. He does 
not take a position in the texts of those speeches in favor of school 
prayer. 

He talks about the privatization of morality, he talks about John 
Stuart Mill, he talks about his disagreement with the obscenity 
cases, he talks about Justice Harlan’s decision on “one man lyric/’ 
et cetera, and he stops short, as I recall reading those speeches— 
and as I say, I have read them recently—he stops short of taking a 
position on the issue of school prayer. 

Reverend Dean. I think that’s incorrect. 

Judge Bork asserts in his speeches on religion “There may be in 
man an ineradicable longing for the transcendent. If religion is offi¬ 
cially removed from public-- 

Senator Specter. Where does he say that? You’re reading from 
your statement. 

Reverend Dean. This is a quote from his speech that he gave— I 
think this quote is in both Brookings and the Chicago speech. 

Senator Specter. Are you now referring to your statement? 

Reverend Dean. I have in my statement a quote from Judge 
Bork- 

Senator Specter. Yes. Well, I just want to follow your text, if you 
would refer me to the page. 

Reverend Dean. It’s on page 8, the second paragraph from the 
bottom. “There may be in man an ineradicable longing for the 
transcendent. If religion is officially removed from the public cele¬ 
bration, other transcendent principles, some of them very ugly, 
indeed, may replace them.” 

Judge Bork in his speech goes on to compliment Newhouse and 
adds, “The public square will not remain naked. If religion departs, 
some other principle, perhaps political or racial, will arrive.” 

By “public square, I take it that can mean nothing else except 
government and the institutions thereof, one of which is our public 
schools. 

Senator Specter. Well, that isn’t the necessary implication, Rev¬ 
erend Dean, as I read that statement, in fairness to all parties. You 
may be talking about nativity scenes, you may be talking about 
prayer in the Nebraska Assembly, you may be talking about 
prayer in the U.S. Senate. 

Do you have anything more specific than what you have quoted 
here as authority for your conclusion that Judge Bork favors school 
prayer? 

Reverend Dean. If you take this speech, and remember that it 
began with an issue over a decision relating to a program in New 
York City- 

Senator Specter. The Aguilar case. 

Reverend Dean. Right. 

Senator Specter. The earlier speech in Chicago was before the 
Supreme Court had the case, and the latter speech was after the 
Supreme Court had decided it. That turned on the issue of some 
public funding, where New York City paid for some school teach¬ 
ers’ salaries and school employees in a parochial school. 

Reverend Dean. That’s correct. 



3014 


My point would be that, in that case, you essentially have a 
mixing of treasurers between church and state. If you mix treasur¬ 
ers, then you eventually dictate interest and policy. The mixing of 
the Treasury of the government with the treasury of the church 
has, in history, led to a dictation of positions concerning liturgy, 
prayer, ritual, or whatever. 

So I think that the two are, in fact, consistent. 

Senator Specter. Reverend Dean, I don’t disagree with the sense 
that treasuries ought not to be mixed. I believe that is sound public 
policy. Actually, the Aquilar case turned on something different 
than that. It turned on the establishment clause; it turned on the 
fact that New York City monitored the use of the public funds in 
the Catholic school. It didn’t turn on the mixture of the treasuries. 
It turned on the intervention of the city officials in the way the 
funds were administered, and that constituted an establishment. So 
said the Supreme Court of the United States, which is slightly dif¬ 
ferent, as a legal matter, from mixing of the treasury. 

Reverend Dean. I understand that. But it was the mixing of the 
treasuries that caused the question. 

Senator Specter. Well, that’s true, but the operative facts which 
led to the Court's decision were the facts that the Court said, once 
the city intervened in the administration of the schools, that the 
city was part of the establishment and that they were administer¬ 
ing, in effect, a parochial school in violation of the establishment 
clause of the first amendment. 

But agreeing with your proposition—and I think that it is impor¬ 
tant that these issues be fully framed. I am aware of the import as 
to what you say about the 13-year-old Jewish child. I’m aware of 
that. I have heard your testimony on Judge Bork’s response. It may 
be that Judge Bork will want to respond to that, I don’t know. It 
may be that he will want to respond. That's a fact question and 
what the inferences are from that we have to decide on the com¬ 
mittee, as to what weight to give it, and we would, of course, I 
think give Judge Bork an opportunity to respond factually. 

But it is different, I think fundamentally different, as to whether 
Judge Bork can be said to favor school prayer. We had a brief dis¬ 
cussion this morning with Professor Kurland on that subject, and 
the Vitale case was something we discussed. It would be my sense 
that, as a matter of basic fairness, that if you turned the language 
such as “There may be in man an ineradicable longing for the 
transcendent. If religion is officially removed from public celebra¬ 
tion, other transcendent principles, some of them very ugly, indeed, 
may replace them”, and then add, “The public square will not 
remain naked. If religion departs, some other principle, perhaps po¬ 
litical or racial, will arrive,” my interpretation from that would not 
be to charge the author, Judge Bork, with a stated preference for 
vocal prayer in schools. 

Reverend Dean. May I respond? 

Senator Specter. Sure. 

Reverend Dean. I would like to push the issue a step further. 

Senator Specter. Okay. 

Reverend Dean. The predicate of this statement which you have 
read is an issue of fear. Would you agree with that? 



3015 


Senator Specter. No. I think the predicate could be a great many 
things. But I wouldn’t want to speculate on the predicate. I would 
be willing to listen to your interpretation, your suggestion, or even 
your argument, but I would not want to make any inference of a 
predicate which would bind the speaker, who is Judge Bork. 

Reverend Dean. “If religion is officially removed from public 
celebration, other transcendent principles—” meaning a transcen¬ 
dence other than that which is religious, that means evil transcen¬ 
dence, right? “—some of them very ugly—” and evil is ugly 
“—indeed, may replace” the religious transcendence, okay? 

There is a fear here that if religion is removed, a void will be left 
and something that is nonreligious and ugly and evil will replace 
it. That’s fear. I think that is terribly important to understanding 
what is happening here. 

“The public square will not remain naked.” In other words, if re¬ 
ligion is taken out. “If religion departs, some other principle, per¬ 
haps political or racial, will arrive/’ 

While in this sentence, in and of itself, it does not use the word 
“prayer,” the most fundamental part of prayer, as religion has 
been organized from the human side, as religion has been orga¬ 
nized, is prayer. So I don’t see how you could exclude it. 

Senator Specter. Well, I think I have your point. I have tres¬ 
passed on Senator Humphrey’s time, and I perhaps would defer to 
Senator Humphrey to pursue this issue further. 

The Chairman. Senator Humphrey. 

Senator Humphrey. Thank you. 

Reverend Dean, I’m glad that you made clear that you are not 
accusing Judge Bork of anti-Semitism. Nonetheless, there may be 
some lingering concern on the part of those who heard your de¬ 
scription of a purported response that Judge Bork made to a case 
that you described involving a 13-year-old boy. I just want to clear 
the air, if I can here, once and for all, about any lingering doubts 
that Judge Bork is anti-Semitic by stating a few facts. 

First we heard from Mr. Crane a moment ago, Howard Crane, 
who is Jewish and who was nearly denied a job at the firm where 
Robert Bork worked as a young lawyer some years ago. Robert 
Bork, a very junior member of the firm, stood up for this man, 
Howard Crime, who he hardly knew at all, and persuaded the 
senior partners to drop this quota system they had which discrimi¬ 
nated against Jewish lawyers. So that's point one. 

Point two, for those who have any lingering doubts, is this: they 
should know that Robert Bork’s first wife, who died tragically of 
cancer, was Jewish. And some of the most important influences in 
the professional life of Robert Bork likewise are members of the 
Jewish community. We’ve heard Professor Alexander Bickel’s 
name mentioned a few times, and also Aaron Director. 

Now, with regards to what you say you heard Judge Bork say at 
this Brookings Institution hearing, it is clear from the way you de¬ 
scribe the scene to Senator Specter that a number of other people 
with you heard Judge Bork say what you purported he said, be¬ 
cause you said the others were as dumbfounded as you were. So it 
is clear that others were there, and, indeed, there were. 

I want to read, Mr. Chairman, passages from letters from other 
people who were there which I think completely puts to rest the 



3016 


charge, if that is what it is, that the appearance of this witness has 
raised. 

Warren Cikins, who is the Brookings Institution official who or¬ 
ganized and attended the event, wrote in a letter to the Washing¬ 
ton Post, after this had gotten into the news, in which he stated, 
“In examining my notes of the meeting, I find no reference to any 
specific Supreme Court decision but only the expression of broad 
concepts and principles. I find no opinion expressed by the Judge 
on the issue of school prayer but only the comment that the cur¬ 
rent turmoil in constitutional law may force some revisions.” 

Now, a little bit more to the point, there were others there who 
were at least as sensitive as you, and perhaps more sensitive, those 
who had reason to be more sensitive, one of whom was Joshua O. 
Haberman of Washington, DC. Let me read this letter that he sent 
to the Washington Post, which was published on August 6 of this 
year. 

“It’s a good thing I was there when Judge Robert Bork met with 
a group of clergy at the Brookings Institution dinner for religious 
leaders in September of 1985, because if I had nothing but the 
Post’s account of that evening, I would draw entirely wrong conclu¬ 
sions about Judge Bork’s views on church and state issues.” 

Mr. Haberman goes on. “The Post’s reporter was not present at 
the meeting. I was. As a rabbi with a strong commitment to the 
separation of church and state, I would have been greatly 
alarmed—“and no doubt he would”—I would have been greatly 
alarmed if Judge Bork had expressed any tendency to move away 
from our Constitution of religious freedom and equality. I heard 
nothing of the sort. In fact, the Judge showed great sensitivity to 
the ambiguities and dilemmas of the first amendment. During an 
extraordinarily long exchange with the assembled clergy, Judge 
Bork was cautious, yet candid and openminded. He threw back at 
us as many questions as he answered, a Socratic approach I found 
most stimulating. 

“I do not recall the Judge's ever stating how he would vote on 
matters such as prayer in public schools. Rather, I gained the im¬ 
pression that Judge Bork favors a pragmatic approach to the most 
controversial church and state issues, with all sides developing 
more flexibility. He sees a need to pull back from the growing po¬ 
larization on these issues which is highly damaging to the country 
and to religious bodies. He also sees a need to give some public rec¬ 
ognition to the role of religion in our history and national life, 
short of promoting one or other religious dogma or ritual under 
state auspices—” that’s short of. I’m nearly finished. 

Let me repeat that sentence. “He also sees a need to give some 
public recognition to the role of religion in our history and national 
life, short of promoting one or the other religious dogma or ritual 
under state auspices, a policy that is now advocated even by the 
staunchly liberal People for the American Way.” As I say, that 
letter was written by Joshua O. Haberman, who is a rabbi and who 
lives here in Washington. 

[Material referred to above follows:] 



3017 


ThcjBrook'wgs Institution 



i>. uimcHviiTTt * c. )W)|ycmn MWimti/ntirBoiti (sob) 707-0000 


Ortffr for PbWsc Pdky Education 


July 28, 1982 


To the Editor 
The Washington Post 


Dear Madame: 

I am quite concerned about the article of A1 Kamen on Thursday, 

July 28 which made reference to a Brookings Seminar for Religious 
Leaders which Judge Robert H. BorV addressed on Thursday, 

September 12, 198S. When Kr. Kamen asked me about the Seminar, 

I replied that it was my understanding as the Chairman of that 
meeting that the meeting was off-the-record. Since other attendees 
have elected to report their recollections of the meeting, I 
thought, in fairness, that 1 should also respond to their comments. 

Whatever one's views are about Judge Bork's qualifications to 
serve on the Supreme Court, he certainly is entitled to a thorough 
and accurate review of his opinions. In examining my notes of 
that meeting, I find no reference to any specific Supreme Court 
decision, but only the expression of broad concepts and principles. 
I find no opinion expressed by the Judge on the issue of school 
prayer, but only the comment that the current turmoil in 
constitutional law may force some revisions. 

O.-ie must remember that the context of this session at Brookings 
was the airing ol a wide range of views on matters of Church and 
State, in an aura of reconciliation not confrontation. While 
Judge Bork was challenged frequently by members of the Seminar, 
he responded with grace and aii inquiring mind, and willingly 
extended the discussion period well beyond its adjournment time. 

Let the debate on Judge Bork's confirmation go forward on its 
merits, in this same aura of the tenacious but gracious pursuit 
of the truth! 


Sincerely 7 ,, 

7/f jl * 

wAr'ren I. Cikins 
Senior Staff Member 



THtbtUT, Aumjst (, 1987 


Tat WtfjggicTjw Fust 


LETTERS TO THE EDITOR 


The Meaning of Murder 


The Bork Nomination (Cont’d.) 


Richard Cdfaen Imagaame, July 19] 
that men d the Ui Army ur 
forces were murdo'eri d ewibans from 
the air. My Webster's Hew Worid 
(I960 edition) <fcfr» murder as Ihe 
unlawful a^d nafioous or premeditated 
lolling by another* As a pilot of B-Z4 
bombers based in Italy. 1 flew 30 mis¬ 
sions to targets in Austria, Germany, 
Yugo&ria and northern Italy. Air tar¬ 
gets were largely r ail c a d marshaling 
yards, od refineries and factories pro¬ 
ducing war goods. Ho doubt arikans 
were tffted, but equating these deaths 
with those in the Genian death camps, 
the rape d N a nton g , the Bataan death 
march or other events b absurd. Mr. 
Cohen has rewritten history and de¬ 
famed honorable men, bring and dead. 

SAMUEL F. STREET 
Salisbury 


‘My (heap Labor' 

l am a former form worker from 
Florida who baa worked » picking 
citrus fruit and tomatoes. With regard 
to the article on the Eastern Shore 
migrant workers JJuly 45], 1 basically 
agree that worker housing in Virginia 
and other states is a disgrace, but I 
totally disagree that the taxpayer 
should hive to aub rid n r agribuSH 
nesses with low-interest bans from 
slate funds. Eastern Shore form 
workers are the only workers I know 
of who have bad a pay decrease in the 


It’s a good ticag I was there when 
Judge Robert Berk met with a group of 
dergy at a BrooJongs Institution dmner 
for religious fodders n Sep temb er 
1965, because if I had nothing but The 
Post’s accnmt d that eremog (boot 
page, July 28), I would draw entirely 
wrong cratousKMB about Jxige Boil's 
views on dumheod- state issues. 

The Poet's reporter was not pres¬ 
ent at the meeting. I was. As a rabbi 
with a strong o«inut»iwK to the sepa¬ 
ration of church and state. I would have 
been greatly alarmed if Judge Bork had 
e xp re s sed any tendency to move sway 
from our cons ti t uti o n al g uua g t ee d 
religious freedom and equafity. I beard 
nothing of the sort 

In fort, the jidge showed great sensi¬ 
tivity to the ambiguities and dflemmas 
of the Fust Amendment. iXmng an 
ex tr aordi na rily long exdmge with the 
assembled dogy, Judge Bat was cau¬ 
tious, yet cvxhd and opewm tnde d He 
threw back at os as many qu r s tran as 
be ansimed—a SccraOc wvoacb J 
found most Wknobtmg. 

I do not recaB the judge’s ever atat- 
mg bow be would vote on natters aoeb 
as prayer in pubbe seboefa. Rather, 1 
gained (be snpressnn that Judge Bork 


most contromwa l church-md-state is- 
sues, with ad aides derefopmg more 
fomfobty. He «b • need a> pufl back 
(ran the gi ow i n g pohriatxn oo these 
bs ues , wfrk± a highly danafpng to the 
camry and to rebgkus bode. He also 


sees a need ti> give acme puhftc reccy- 
imrn to the role d religion m oar 
history and national He, abort <J jao- 
fDOdng one or the other rehgwus dog¬ 
ma or nun! m d a state auspices—« ' r j4^~ 
pdtey that is now advocated even by V 
the staunchly liberal fleepkufcythe 
Ammcan Way. ~~~ 

( JOSHUA 0. HABERMAN 
V WashugtoD 

a _ 

The Pent ia lo be com mended for 
what appears lo be a surprisingly 
evenhanded scri p d articles on 
Judge Bork by Date Russakoff and A1 
Kamen IJuJy 26,27,48). 

I now understand better why there 
has been such rabid opposition to 
judge Bert's nomination to the Su¬ 
preme Court The yidge baa appar¬ 
ently committed at least two cardinal 
be kept an open mind as he grew 
older and matured, and be '’convert¬ 
ed* from i&eralianfoociahsra/feftBm 
to a philosophy reflected by the prag¬ 
matic old diche. if you're not a social¬ 
ist it 20, you don't have a heart; if 
you're still a aoriafai at 30 (or 40), 
you don't bare a brain. 

Judge Bork also apparently belieres 
that if a law or the Constitution 
doesn't allow, or dfoaflow, an action, 
then a judge should not give or take 
away. 1 find that bard to argue with. 

But then I hare tried to keep my mmd 
tnm dosing. 

WALTER M. PICKARD 
Alexandra 



3019 


Senator Humphrey. Mr. Chairman, I don’t know whose idea it 
was to call Reverend Dean, but if the idea was to create the im¬ 
pression of anti-Semitism, it’s rubbish. If the idea is to create the 
impression that, in private, or in the Brookings Institution, Robert 
Bork called for some kind of state-sponsored religion, that, too, is 
rubbish. I find this whole episode of this last half hour easily the 
most distasteful of this entire two weeks of hearings. 

Again, I don’t know who recommended or who is responsible for 
calling this witness, but it stinks. 

The Chairman. Let me respond to that. 

I asked the same question 2 minutes before the witness was 
called. I was told that staff had asked Reverend Dean to testify, or 
asked if he wished to testify, and as a consequence of an exchange 
that had taken place between Judge Bork and Senator DeConcini 
regarding the Washington Post story. 

I should note for the record that not only has the witness not 
said that Judge Bork is anti-Semitic, but he expressly said he did 
not believe he was. I should point out for the record that Judge 
Bork’s first wife was Jewish- 

Reverend Dean. I know that. 

The Chairman. I have known of no one who has indicated other¬ 
wise. But it related to the following testimony; that is, on page 259 
of the transcript, where Senator DeConcini says, “Well, first, do 
you remember an exchange with Reverend Kenneth Dean?” Judge 
Bork, “No, I do not, and fm certain that I did not say a thing like 
that about ‘a Jewish boy will get over it.’ There has been some dis¬ 
cussion of my relationship.” Senator DeConcini: “If Reverend Dean 
said that you did say that, your answer to that next week is going 
to be that he was mistaken?” Judge Bork: “I certainly am. I do not 
know what I said, but if I said anything, it must have been in front 
of a group. And I earlier introduced into the record, Senator, let¬ 
ters. Somebody also said I endorsed school prayer. I did not know 
what was going on that night, but I did not endorse school prayer. I 
never thought those cases—I never really thought about the prob¬ 
lem and I certainly did not wait until I became a judge to go over 
and talk to an audience about endorsing school prayer. 

That is in the record. I yield to the Senator from South Carolina. 

Senator Thurmond. Thank you very much, Mr. Chairman. 

You’re a Baptist preacher, I believe? 

Reverend Dean. That’s correct. 

Senator Thurmond. I’m a Baptist, too, but I don’t agree with you 
coming here and saying the things you did. 

Reverend Dean. I didn’t come here on my own. I was invited 
here, your Honor. 

Could we clarify that, Mr. Chairman? 

Senator Thurmond. I believe you admitted—I’m glad you have— 
that you don’t think Judge Bork is anti-Semitic. I believe you did 
say that, didn’t you? 

Reverend Dean. That’s not my concern. That’s correct. 

Senator Thurmond. You don’t think he’s anti-Semitic, do you? 

Reverend Dean. No, I do not. 

Senator Thurmond. Well, Mr. Cikins, who had charge of that 
seminar, and who describes himself as a devout Jew, says he finds 
no reference—he kept notes—to any specifics to Supreme Court de- 



3020 


cisions but only an expression of broad concepts and principles. 
And he made this statement: “I find no opinion expressed by the 
Judge on the issue of school prayer.” 

So if there was an article in the Washington Post, and I presume 
there was, from what has been said, it must have been in error. So 
I think the people that had you here had you on the assumption 
that the statement in the Washington Post was correct, but it has 
turned out to be incorrect. So I imagine, in view of that, that you 
would want to apologize to the committee. 

Reverend Dean. I have no apology to make whatsoever. I am tes¬ 
tifying here under oath, and I testified that what I have reported 
to you is, in fact, true. If Judge Bork wants to explain to himself 
what he meant by that, you have the freedom of calling him back 
here. 

I would like to say one other word about the questions of anti- 
Semitic. My concern, as I have told you, is not the issue of his per¬ 
sonal feelings in a one-to-one relationship. Senator Thurmond and I 
both come from a tradition in the South in which for a long time 
we have talked about, in a personal way, how we have related to 
and liked black people. But we also participate in a system which 
left open, in a political way and a legal way, for others to be very 
discriminatory. 

I think that the position of Judge Bork, as it is outlined in his 
speeches—you all are lawyers, and you can look at it and analyze 
it—I think it leaves open a statim view of society which pushes the 
issue back of prejudice, whether it be with blacks or whites, to the 
local level. I think that his record of his writings on civil rights are 
ambiguous enough that it makes him a high-risk candidate for the 
Supreme Court, and the United States, at this point, does not need 
to take a high-risk candidate when we have many fine, qualified 
legal people of a conservative persuasion. 

The Chairman. Thank you very much. 

Senator Thurmond. Now, just a minute. You say you don’t think 
he’s anti-Semitic, and since the evidence is clear that he didn’t 
make any statement that was quoted correctly about that seminar, 
there is really no basis for your statement here today, was there? 
These other statements you made are off the cuff on your own. 

Reverend Dean. Mr. Cikins’ statements, I know Warren Cikins 
and he used to be an aide to Brooks Hayes from Arkansas, a dear 
friend of mine. 

Senator Thurmond. Mr. Cikins is a good man. I know him, and 
he’s with the Brookings Institute. 

Reverend Dean. That’s correct. And his statements there refer to 
the speech, not to the exchange. 

Senator Thurmond. Are you willing to take his statement, that 
“I find no opinion expressed by the Judge on the issue of school 
prayer?” I mean, that’s the main thing you have based your testi¬ 
mony on here. 

At any rate, from the information you have presented here 
today, it was hardly worth your while to come here, wasn’t it? 

Reverend Dean. It was very important for me to come here. 
Even if my testimony is rejected completely, I have spoken the 
truth as I experienced it, and I thank you distinguished gentlemen 
for allowing me to be here. 



3021 


The Chairman. Let me make it clear the two points here. One 
Mr. Cikins speaks to, one he does not. The first point was whether 
or not how Judge Bork responded to your reference to your experi¬ 
ence in 1961; that is one issue. The second issue is whether or not 
Judge Bork endorsed or did not endorse prayer in school. 

Warren Cikins said he drew a conclusion similar to the one that 
Senator Specter drew from reading Judge Bork’s speeches. That is, 
that he has no recollection of the Judge concluding—he only spoke 
to the second issue, of whether or not Judge Bork endorsed school 
prayer. 

I thank you very, very much for your testimony. The hearing is 
adjourned until tomorrow morning at—is recessed until tomorrow 
morning at 10 o’clock. 

[Whereupon, at 6:27 p.m., the committee adjourned to reconvene 
at 10 a.m., Tuesday, September 29, 1987.] 




NOMINATION OF ROBERT H. BORK TO BE 
ASSOCIATE JUSTICE OF THE SUPREME COURT 
OF THE UNITED STATES 


TUESDAY, SEPTEMBER 29. 1987 

U.S. Senate, 

Committee on the Judiciary, 

Washington , DC. 

The committee met, pursuant to notice, at 10:06 a.m., in room 
SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr. 
(chairman of the committee) presiding. 

Also present: Senators Kennedy, Metzenbaum, DeConcini, Leahy, 
Heflin, Thurmond, Hatch, Simpson, Grassley, Specter, and Hum¬ 
phrey. 

The Chairman. The hearing will come to order. 

I thank the witnesses for being here on time. We have a distin¬ 
guished panel on the issue of privacy this morning. Our first panel 
member is Henna Hill Kay, professor of law at the University of 
California, Berkeley. She has significant professional experience, 
including being a law clerk to Justice Roger Traynor of the Califor¬ 
nia Supreme Court from 1959 to 1960. She is the author of text¬ 
books on the issue of sex-based discrimination and a very distin¬ 
guished and published scholar. 

Also we have David A.J. Richards, a professor of law at New 
York University, a graduate of Harvard and Oxford University. He 
published numerous articles and books, including “Toleration and 
the Constitution” in 1986. 

And Kathleen Sullivan is a professor of law at Harvard Universi¬ 
ty, and she has a considerable amount of experience in the area of 
constitutional law, criminal law and local government law. She has 
been very involved in Supreme Court efforts and also in issues re¬ 
lating to privacy. 

I apologize for not reading the whole of your background, which 
is distinguished, all three of you; but in the interest of time, I will 
leave it at that. 

I will ask you all three to please stand to be sworn. 

Do you swear that the testimony you are about to give is the 
truth, the whole truth, and nothing but the truth, so help you God? 

Ms. Kay. I do. 

Mr. Richards. I do. 

Ms. Sullivan. I do. 

The Chairman. Thank you. 

Senator Kennedy. Mr. Chairman, just for a moment I want to 
welcome the panel, particularly Professor Sullivan, who I found is 


(3023) 



3024 


highly regarded in not only the academic community in our part of 
the country, but nationwide. It is a pleasure to have her here. 

The Chairman. Thank you, Senator. We are anxious to hear 
from all three of you. Obviously, you have observed we are trying 
very hard to keep within a 5-minute rule on presentation. You wifi 
have time to expand on your statements during the question-and- 
answer period. 

So to the extent to which you can keep your statements to 5 min¬ 
utes, it will do two very important things for us: Number one, it 
will set the pattern for the rest of the day so we are able to finish 
at a reasonable hour this evening; secondly, it will keep Senator 
Thurmond from whispering in my ear the remainder of the day. 
When Senator Thurmond whispers in my ear, I listen and the mes¬ 
sage is coming across loud and clear: Let us get this thing moving. 
It would be very helpful to me. 

Senator Thurmond. Mr. Chairman, we have so many witnesses. I 
was just looking at the list. If we do not keep them to 5 minutes 
and the Senators, too, to 5 minutes, we will be here until 12:00 
o’clock tonight. So thank you very much if you can keep it to 5 
minutes. 

There is a little light there. When that turns red, your time is 
up. 

The Chairman. Would you set the clock, please? 

If it goes beyond that, Senator Thurmond will come over the 
table personally to speak to you. 

Senator Thurmond. You are the Chairman; that is your job. 

The Chairman. Well, I would delegate you that job, Senator 
Thurmond. 

Let us begin, and maybe we could begin with you, Professor Kay, 
unless you have another order preference, however you would like 
to go. 

Ms. Kay. That is fine. 

The Chairman. All right. Please proceed. 



3025 


TESTIMONY OF A PANEL CONSISTING OF: HERMA HILL KAY, 
DAVID AJ. RICHARDS, AND KATHLEEN M. SULLIVAN 

Ms. Kay. Thank you, Senator Biden. 

It is a pleasure to be here today at your invitation to discuss with 
you some of my concerns as a legal scholar about Judge Bork and 
whether he should be confirmed as a member of the U.S. Supreme 
Court. At your request, I will be focusing my testimony on his posi¬ 
tion with respect to the Griswold line of cases and what that 
means about the possibility of his actions if he is confirmed. 

Much has been said in this room about Judge Bork’s change in 
his thinking and change of his positions since he has appeared at 
these confirmation proceedings. On the subject about which I am 
going to speak, however. Judge Bork has not changed his views one 
iota in the last 16 years. He took the position in 1971, in his Indi¬ 
ana Law Review article when he first worked out his judicial phi¬ 
losophy. He said that he had a theory of constitutional adjudication 
which required that the Constitution was to be interpreted accord¬ 
ing to its text and its history. He gave one example of the courts 
having failed to follow that mode of reasoning; was the failure ex¬ 
emplified by the Griswold line of cases. 

He reaffirmed that position in his 1986 San Diego Law Review 
article. He said there that he adhered to his original intent theory 
of judicial reasoning, and he again highlighted the Griswold case 
and the cases following it as an example of what the Supreme 
Court should not do if it were following his position. 

In this very room, in his testimony before this committee, he con¬ 
tinued to advance both his theory of constitutional adjudication 
and to make the point that the Griswold line of cases was incor¬ 
rectly reasoned under his theory. He said that the precedents that 
rested upon Griswold had no sound basis in constitutional theory. 

Turning to his record as a judge, Judge Bork—sitting on the 
Court of Appeals for the District of Columbia Circuit, spoke in two 
cases with respect to the right of privacy. In one case in which he 
wrote the opinion for the panel, the Dronenburg case, Judge Bork 
criticized the Griswold line of cases, interpreted that line of cases 
very narrowly, and declined to apply that line of cases in the deci¬ 
sion for the panel. 

Four of his colleagues, in dissenting from the suggestion to 
rehear the case en banc, said that Judge Bork had failed to follow 
the Supreme Court’s line of precedent in good faith. 

In an earlier case, the Franz case, in which he wrote a separate 
opinion, Judge Bork criticized the panel for having used the Gris¬ 
wold line of cases and thought that they had applied that line of 
cases too expansively. 

So Judge Bork has been consistent, as a law professor, and as a 
member of the Court of Appeals for the District of Columbia Cir¬ 
cuit, in his view that the Griswold line of cases is wrong and 
should not have a rightful place in constitutional theory. 

Now, what are we to conclude from that record as to how Judge 
Bork would react if he were confirmed as a Justice of the U.S. Su¬ 
preme Court and were asked to apply the Griswold line of reason¬ 
ing to a new case? This committee has understandably been very 
concerned about that very matter, and Judge Bork was asked 



3026 


about that precise issue. Under questioning both by Senator Thur¬ 
mond, Senator Hatch and Senator Heflin, among others, Judge 
Bork indicated how he would treat a new case resting on the Gris¬ 
wold line of reasoning. He said, “First, I would ask the lawyer to 
tell me whether I could find a generalized right of privacy in the 
Constitution. And if the lawyer could not do that,” he said, “I 
would then ask whether the lawyer could find a specific basis for 
whatever right was being asserted.” 

In the line of questioning by Senator Hatch and Senator Heflin, 
the discussion focused on the abortion cases, and so Judge Bork 
asked whether there could be located in the Constitution a specific 
right to an abortion. 

If neither those rights—a general right to privacy or a special 
right to an abortion—could be found in the Constitution then 
Judge Bork said, “We would have to look at stare decisis and see 
whether this precedent is one that should be adhered to, even if 
wrong; and if not, whether there are institutional reasons for sus¬ 
taining it.” 

Judge Bork’s view about that suggests that if the case were con¬ 
tinually active in producing bad and dangerous precedent, then 
that was a reason for overruling it. The Griswold line of cases is 
still developing. In Judge Bork’s view, it is not a sound line of de¬ 
velopment. He has, while on the court of appeals, voted to restrict 
it, and has not voted to expand it. It is my view that if placed on 
the U.S. Supreme Court he would vote to overrule it, and that 
would threaten all of our liberties and our rights to privacy. And 
that causes me great concern, as I know it does members of this 
committee. 

Thank you, Senator Biden. 

[The statement of Professor Kay follows:] 



3027 


UNITED STATES SENATE 
COMMITTEE ON THE JUDICIARY 
HEARINGS ON THE CONFIRMATION OF JUDGE ROBERT BOR) 

AS ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT 

TESTIMONY OF PROFESSOR HERMA HILL JAY 
September 29, 19B7 

Senator Biden, Distinguished Members of the Senate 
Judiciarv Committee: I am Hernia Hill Jay, Professor of Law at 

the University of California, School o-f Law, E'er! el&v. I am 
pleased to be here at your invitation to give you whatever help 1 

can in your discharge of your constitutional duty to give or 

withhold your consent to the President's nomination of Judge 
Robert BorJ as Associate Justice of the United States Supreme 

Court. The testimony that I give is, of course, my own and in no 

way implies any of-ficial endorsement of my views by the 
University of California or the School of Law at Berleley. 

I have taught and written m the areas of family law, 
marital propertv, and the conflict of laws since I began mv 
teaching career in 19fe0. In addition, since 1972 I have taught 
and written in the area of sex-based discrimination. 
Constitutional law issues of great importance and complexity 
arise with some frequency in all of my subject-matter 
specialties, and I am to that extent also involved in teaching 
and writing about constitutional law. At your request, I will 
focus my remarls today on Judge Bor* 's qualifications to serve on 
the United States Supreme Court and to participate in that 
capacity in the decision of constitutional issues affecting the 
family, privacy, and individual liberties. 

I should say at the outset that I have no reason to 
doubt Judge Bor I s personal integrity or his intellectual 
prowess. Indeed, it is because I ta^ e seriously Judge Borl's own 
statements about the proper role of a judge in constitutional 
adjudication that I believe he should not be confirmed as a 


88-374 0 - 89 - 11 



3028 


member of the highest court in the land. In spelling out m/ 
doubts about Judge Sort's judicial philosophy, I draw on some of 
the following sources: his published writing, his judicial 
opinions, his speeches, and his testimony before this Committee 
as I heard and watched.it on radio and television. I did not 
have access to a full transcript of his testimony as I prepared 
my own written testimony. 

I reject the idea that Judge Borl 's law review articles, 
including one written while he was a professor at Vale, are not 
relevant to the decision you must make about his qualifications 
as an Associate Justice on the United States Supreme Court. 
Those articles, and especially the one entitled, "Neutral 
Principles and Some First Amendment Problems," published in 1971 
in volume 47 of the Indiana Law Journal at pages 1-35, set out a 
theory of constitutional adjudication that Judge Bork has 
defended over the years. He reaffirmed the core of that theory 
m a speech he gave m Sah Diego m 1965, and which was 
published in 1906 under the title, "The Constitution, Original 
Intent, and Economic Rights," in volume 23 of the San Diego Law 
Review at pages 823-832. He reaffirmed that theory most recently 
in the open and candid testimony he gave before this Committee 
last weel- . Judge Bori '% articles, speeches, and conf l rmat l on 
hearing testimony are, I submit, a truer guide to his own 
judicial philosophy than the cases he participated in as a judge 
during his tenure on the United States Court of Appeals for the 
District of Columbia Circuit. That is so because Judge Bort is 
the sole author of his own articles and speeches, and does not 
have to qualify or present his ideas in such a way as to attract 
the support of his colleagues on the bench. - Moreover, as a 
judge on an intermediate appellate court, Judge Borl- is 
constrained by the precedents of a higher authority the United 
States Supreme Court. He and his judicial colleagues on the 
District of Columbia Circuit are not free to overturn those 
precedents, even if he might wish to try and persuade them to 
join him in doing so. Judge Bort has made this very point 
himself. Zn Dronenburg v. Zech, 741 F.2d 1388, 1396, and 1396 



3029 


n. 3 (D.C. Cir. 1964), he wrote in the text of his opinion for 

the courts "1+ it is in any degree doubtful that the Supreme Court 
should freely create new constitutional rights, we thin! it 
certain that lower courts should not do so." In footnote 5, he 
said: 


5. It may be only candid to say at this point 
that the author of this opinion, when in academic 
life, expressed the view that no court should 
create new constitutional rights; that is, rights 
must be fairly derived by standard modes of legal 
interpretation from the text, structure, and 
history of the Constitution. Or, as it has been 
aptly put, "the work c-f the political branches is 
to be invalidated only in accord with an inference 
whose starting point, whose underlying premise, is 
fairly discoverable in the Constitution. That the 
complete inference will not be found there — 
because the situation is not lively to have been 
foreseen —— is generally common ground." J. Ely, 
Democrac^ and Distrust 2 (I960). These views are, 
however, completely irrelevant to the functions of 
a circuit judge. The Supreme Court has decided 
that it may create new constitutional rights and, 
as judges of constitutionally inferior courts, we 
are bound absolutely by that determination. The 
only questions open for us are whether the Supreme 
Court has created a right which, fairly defined, 
covers the case before us or whether the Supreme 
Court has specified a mode of analysis. a 
methodology, which, honestly applied, reaches the 
case we must now decide. 


I conclude, based on Judge Borl's written record, both 
as a law professor and a judge, as well as on his testimony 
before this Committee, that his theory of how judges should 
approach constitutional cases is a coherent one that has not 
essentially changed since 1971. That theory provides an adequate 
basis for predicting how he is lilely to define his own role as a 
judge on the highest court of the land, once he is freed of the 
constraints that bind him now as a member of one of the 
intermediate federal courts of appeal. If he adheres to his own 
theory of proper judging, the most significant existing 
constitutional basis for the protection of the •'lght of privacy, 
which encompasses family privacy, individual liberty and 
automony, and the emerging right of personal association, will be 
gravely threatened. Judge Bock, if he is true to his own theory 




3030 


of judging, will surely vote to limit that constitutional basis, 
rnown as substantive due process, to its narrowest scope; he will 
certainly not votE to expand it to encompass new appl 1 cations; 
and he may vote to overturn it entirely. 

What is Judge Borl s theory o-f constitutional 
adjudication'* He has stated it most ‘simply himself m the 
San Diego article. I paraphrase his position here as follows: The 
Constitution is law; its words constrain judges in constitutional 
adjudication; contemporary judges must interpret those words 
according to the intentions of those who drafted, proposed, and 
ratified the constitution and its various amendments; lest the 
document become obsolete, however, judges are not to be limited 
to apply the constitution only to the circumstances specifically 
contemplated by the Framers; rather, it is sufficient that the 
text, structure, and history of the Constitution provide the 
judge with a major premise; that major premise states a core 
value that the Framers intended to protect; the judge must then 
reason from the major premise to supply a minor premise in order 
to protect the constitutional freedom m contemporary 
circumstances the Framers could not forsee. 

Judge Borl gives two examples of how this theory of 
constitutional adjudication (which he calls M 1 ntentional 1sm" or 
"lnterpretlvism”) works in permitting judges to translate the 
core values of the constitution to modern times. One example, 
has to do with technological change. Thus, he says, "CwJe are 
able to apply the first amendment‘s Free Press Clause to the 
electronic media and to the changing impact of libel litigation 
upon all the media; we are able to apply the fourth amendment's 
prohibition on unreasonable searches and seizures to electronic 
surveillance; we apply the Commerce Clause to state regulations 
of interstate trucking." (E^orl , The Constitution, Original 
Intent, and Economic Rights, 23 San Dieqo L. Rev. 823, S2o 


( 1 90e>) ) . 



3031 


The second e::ample has to do with changing notions of 
■family intimacy and individual sexual autonomy. Our attitudes 
about the proper roles o-f men and women in society, the 
•functions entrusted by the society to the -family, and the 
autonomy o-f individual aspirations beyond the -family have been 
transformed by technological change and economic progress as 
surely as our understanding of free speech has been altered by 
the development of electronic eavesdropping devices. Yet Judge 
Bor* does not approve of the Supreme Court's method of deriving a 
constitutional right of privacy that protects the emerging 
social consensus supporting family autonomy and individual 
freedom in decisions affecting family intimacy. He rejects that 
method because he believes that the Court has chosen to draw a 
broader and more generalized right of privacy from the specific 
provisions of the Bill of Rights than the words, structure, and 
history of the Bill of Rights will support. In his view, if the 
Constitution is silent on the subject of a generalized doctrine 
of family privacy and individual autonomy, the judge must accept 
the choice made by the elected representatives of the governing 
majority to condemn certain sexual practices. “That result 
follows," he says, "from the principle of acceptance of 
democratic choice where the Constitution is silent." <8orJ, id., 
23 San Diego L. Rev. at 820.) 

In continuing his analysis. Judge Borf notes that he 1 s 
not arguing that anv of the privacy cases were wrongly decided; 
rather his point is that "the level of abstraction chosen males 
the application of a generalized right of privacy unpredictable.” 
(Borl , id., 23 San Diego L. Rev. at B29. ) In 1'ile fashion, 1 
will not argue today that the privacy cases were rightly decided. 
Rather, I will show that the logic of Judge Borl s position will 
require him, as an Associate Justice of the Supreme Court, to 
repudiate a method of reasoning that has enabled that Court to 
preserve the Constitution both as a contemporary statement of the 
Supreme Law of the land and as an evolving repository of the 
fundamental freedoms of the American people. 



3032 


Judge Bor \ identities, both in his 198& San Diego Lau 
Review article and in his 1971 Indiana Law Review article. the 
case of Griswold v. Connecticut, 7-81 U.S. 479 (1965), as a clear 
example of impermissible judicial reasoning that violates hi £ 
theory of constitutional adjudication. In his testimony before 
this Committee, he referred to Justice Douglas's reasoning in 
that case as "pernicious." §Ci 5 wold involved a challenge on 
behalf of married couples to a Connecticut statute dating bacl to 
1879 that prohibited "any person" from using contraceptive 
devices for the purpose of preventing conception. A majority of 
the Supreme Court invalidated the statute as an impermissible 
invasion of the constitutional right of married persons to 
determine for themselves both the sire of their families and the 
manner of their seuual intimacy. Gri^swg]_d builds a constitutional 
wall of privacy around the marital bedroom. and forbids the 
state from limiting marital intimacy to procreation. 

Fi <e members of the Grl^swol^d Court drew this 
constitutional right of marital privacy from an analysis of the 
specific guarantees of freedom contained in several’ provisions of 
the Eri 11 of Rights: the right of association m the First 
Amendment; the prohibition against quartering of soldiers in an 1 - 
house contained in the Third Amendment; the protection against 
unreasonable searchs and seizures provided in the Fourth 
Amendment; the protection against self-lncrlmination contained in 
the Fifth Amendment; and the reservation of rights to the people 
in the Ninth Amendment. Justice Douglas drew on earlier Supreme 
Court decisions for the proposition that "specific guarantees in 
the Bill of Rights have penumbras, formed by emanations from 
those guarantees that help give them life and substance." He 
went on to conclude that the marital relationship lies "within 
the zone of privacy created by several fundamental constitutional 
guarantees." (Griswold v. Connecticut, 361 U.S. 479, 434-85 
(1965)). 

Justice Goldberg, concurring, accepted for himself and 
for Justices Brennan and Chief Justice Warren the analysis 
provided by Justice Douglas, but stressed the significance he 






3033 


■found in the Ninth Amendment to the Court's conclusion. Justices 
Harlan and White, in separate concurrences, preferred to rest the 
decision an the protection of "liberty" contained in the due 
process clause of the 14th Amendment, without regard to the Pill 
of Rights. Justices Blacl and Stewart, in separate dissenting 
opinions, expressed their belief that the Connecticut statute 
must be upheld because no const 1 1ut 1 onal right of privacy could 
be located in the specific text of the document. 


Judge Borl 5 criticism of the Griswold reasoning is 
directed primarily at Justice Douglas's opinion. His chief 
objection, set out in concise form in the San Diego Law Review 
article, is that Douglas generalized the specific protections 
contained in particular provisions of the Bill of Rights into an 
overall right of privacy that applies even where none of the 
specific provisions apply. He concludes: 

By choosing that level of abstraction, the Bill of 
Rights was expanded beyond the 1 nown intentions of 
the Framers, Since there is no constitutional 
te:it or history to define the right, privacy 
becomes an unstructured source of judicial power. 

(Bort , id., 27 San Diego L. Rev. at S2B-29.> Judge Borl offered 

a fuller criticism of Justice Douglas's opinion in his earlier 

Indiana article. He said there: 


The Gri^swo^d opinion fails every test of 
neutrality. The derivation of the principle was 
utterly specious, and so was its definition. In 
fact, we are left with no idea of what the 
principle really forbids. Derivation and 
definition are interrelated here. Justice Douglas 
called the amendments and their penumbras "zones 
of privacy," though of course they are not that at 
all. They protect both private and public 
behavior and so would more properly be labelled 
"zones of freedom," If we follow Justice Douglas 
in his next step, these zones would then add up to 
an independent nrht of freedom, which is to say, 
a general constitutional right to be free of legal 
coercion, a manifest impossibility in any 
imaginable society. 

Griswgid, then, is an unprincipled decision, 
both in the way' in which it derives a new 
constitutional right and in the way it defines 
that right, or rather fails to define it. We are 
left with no idea of the sweep of the right of 
privacy and hence no notion of the cases to which 
it may or may not be applied in the future. The 




3034 


truth js that the Court could not reach its result 
in Griswold through principle. The reason is 
obvious. Every clash between a minority claiming 
•freedom and a majority claiming power to regulate 
involves a choice between the gratifications of 
the two groups. When the Constitution has not 
spol en, the Court will be able to -find no scale, 
other than its own value preferences, upon which 
to weigh the respective claims to pleasure. 
Compare the facts in Grl^swol^d with a hypothetical 
suit by an electric utility company and one of its 
customers to void a smote pollution ordinance as 
unconstitutional. The cases are identical. 


Bari, 47 Indiana L. Rev. at 9. In his testimony before this 
Committee, Judge Boris called Justice Douglas's opinion more of a 
“metaphor" than a reasoned analysis of the Constitution. He has 
repeatedly condemned the concept of substantive due process as a 
’‘pernicious" doctrine. Yet Justice Douglas did not rely upon 
the specific provisions of the Bill of Rights to create the right 
of marital privacy. Indeed, in the closing paragraph of his 
opinion, he stated that "Cwle deal with a right of privacy older 
than the Bill of Rights—older than our political parties, older 
than our school system." As the remaining sentences of that 
concluding paragraph show, Justice Douglas drew the concept of 
marital privacy from the very nature of marriage itself: 


Marriage is a coming together for better or for 
worse, hopefully enduring, and intimate to the 
degree of being sacred. It is an association that 
promotes a way of life, not causes; a harmony in 
living, not political faiths; a bilateral loyalty, 
not commercial or social projects. Yet is is an 
association for as noble a purpose as any involved 
in our prior decisions. 


Griswold v. Connecticut, 381 U.S. 479, 496 (1965). What Justice 
Douglas did was to hold that the protections of individual 
autonomy guaranteed by the words of several provisions of the 
Bill of Rights created a broader protection for the scope of 
individual self-determination than their specific content would 
suggest. The spirit, or (to use Douglas's word), the 
"penumbras" emanating from these specific provisions of the Bill 
of Rights, when incorporated by the due process clause of the 
Fourteenth Amendment, limit the power of the state legislatures 
to impair the privacy that is inherent in the marriage 


relatlonship. 





3035 


Contrary to Judge Borl s view, the statement of such a 
principle does not create a new and undefined constitutional 
right. Rather, it recognizes that the essential nature o-f a 
basic social institution — marriage — cannot be maintained 
without protection against state regulation that deprives its 
members o-f the -freedom of intimate association in the same way 
that the specific provisions o-f the Bill of Rights cited, when 
incorporated into the Due Process Clause, protect other similar 
personal freedoms against state regulation. 

Justice Goldberg forcefully demonstrated in his 
concurring opinion in Griswold that the refusal to entertain the 
possibility that the Constitution protects the family against 
even extreme state regulation would lead to absurd results. He 
gave an e; ample of what he meant. He said, "Cslurely the 
Government, absent a showing of compelling subordinating state 
interest, could not decree that all husbands and wives must be 
sterilized after two children have been born to them." Vet, he 
went on to point out, bv the reasoning of the two dissenters in 
Griswold, (Justices Hugo Blacl and Potter Ctewart), tand 1 would 
add, by the logic of Judge Bor) s theory of constitutional 
adjudication as well!, . , such an invasion of marital privacy 

would not be subject to const 1 tut 1 onal challenge because . , » no 

provision o * the Constitution specifically prevents the 

Government from curtailing the marital right to bear children and 
raise a family." <381 U.S. at 496-97; concurring opinion of 
Justice Goldberg.) 

Contrary to Judge Bor) s view of the right to privacy 
cases, I do not believe that they represent an unprincipled and 
unpredictable usurpation of legislative power by the Supreme 
Court. Analyzing these cases as they stood in 1980, the editors 
of the Harvard Law Review thus described the Court's methodology; 

Briefly put, the Court has sought to identify 
those areas of human activity in which individual 
free choice is so rooted in the "traditions and 
[collectjve] conscience of our people" that 




3036 


substantial intrusion would disturb the proper 
balance between liberty and the demands of 
organized society. 

Developments in the Laws The Constitution and the Family, 93 
Harvard Law Review 1156, 1177-78 (1980) (-footnote omitted). The 

editors go on to discuss the Court's use of tradition as the 
basis -for identification of fundamental values and its 
insistence that those values have conte/nporary validity in order 
to gain constitutional protection. 

It is important to recognise how basic those protected 
fundamental rights are to our contemporary conceot of a free 
society. Without attempting to discuss specific cases, or to 
justify in each case the Court's result, we can note that the 
Court's method of reasoning has identified the following, among 
others, as constitutionally protected family rights! the right to 
marry without regard to racial restrictions Cloving v. Virginia, 
388 U.S. 1 (1967)1 or financial limitations CZabiocfi v. Redhai1, 
434 U.S. 374 <1978)]; the right to determine one's procreation 
[Skinner v. Oklahoma, 316 U.S. 535 (1942); the right to control 
one's fertility through the use of contraception ECarey v. 
Population Services International, 431 U.S. 678 (1977); 

Eisenst adt v. Baird, 405 U.S. 438 (1972): Griswold v. 

Connecticut, 381 U.S. 479 (1965)] and abortion CRoe v. Wade, 410 
U.S. 113 (1973)1; the right to maintain extended family 
relationships CMoore v. City of East Cleveland, 431 U.S. 494, 499 
(1977) (plurality opinion)]; and the right to rear and educate 
one's children [Lassiter v. Department of Social Services, 452 
U.S. 18 (1981); Pierce v. Society of Sisters, 26B U.S. 510 

(1925); Meyer v. Nebraska, 262 U.S. 390 (1923)3. Although the 
specific constitutional basis for the recognition of these 
fundamental rights has varied, the Court over the years has come 
to rest many of them in the due process clause of the Fourteenth 
Amendment. These are some of the freedoms protected bv the 
Court's continuing development of the doctrine of “substantive” 
(as opposed to "procedural"> due process. 



3037 


Judge Bor* has been especially critical o-f the 
substantive due process cases. His criticism is understandable, 
given his interpret ivi st approach to the Constitution. Several 
years ago, the editors o-f the Harvard Law Review thus explained 
the objections o-f interpreti vists to the doctrine o-f substantive 
due process? 


There are different schools of 1 nterpret 1 vi st 
thought. Some 1 nterpret 1 vists argue that the 
Constitution should be read in its historical 
context, staying as close as possible to the exact 
meaning that the Framers would have given 
constitutional provisions. This approach purports 
to minimise the tensions inherent in judicial 
review by limiting courts to effectuation of the 
ascertainable intent of the Framers. . , At this 
late date, however, adoption of this approach 
would require a massive abandonment of precedent. 
Decisions enforcing the guarantees of the Bill of 
Rights in situations where the Framers would not 
are irreconcilable with ''historical" 

1 nterpret 1 vism. Concentratlng on the precise 
views of the Framers would rob the Constitution of 
its capacity to respond to the changing threats to 
liberty presented by an increasingly powerful 
government. It is not surprising that even the 
leading modern exponent of lnterpretivist 
philosophy on the Court, Justice Black, did not 
subscribe to it. 

Most interpreti vists loo* through the text to 
its underlying purposes, but insist that only 
those values that "the Constitution mar*s as 
special" may form the basis of constitutional 
decisions. This more expansive brand of 
interpretivism see*s legitimacy, not in the claim 
that prior political decisions dictate the answer 
to particular constitutional questions, but in the 
fact that the Framers identified certain broad 
values — such as free speech or protection from 
unreasonable searches — as constitutionally 
significant. While judges need not loo* solely to 
history to determine what a particular provision 
means, judicial interference must be limited, 
according to this view, to those areas of concern 
identified by plain constitutional language. 
Insufficiently explicit provisions such as the due 
process and equal protection clauses are not to be 
used to justify the enforcement of rights not 
enumerated in the text. Courts are not authorized 
"to roam at large in the broad expanses of policy 
and morals . u 

The Constitution and the Family, 97- Harvard Law Review at 1] 69-71 
(footnotes omitted). Judge Bor* s brand of lnterpret i vism (which 
he calls "i ntentlonalism") is closer to the second approach 
described by the Harvard editors than to the first. In his 1906 
San Diego Law Review article, he wrote: 



3038 


It is important ta be plain at the outset 
what intentional ism means. It is not the notion 
that judges may apply a constitutional provision 
only to circumstances specificallv contemplated bv 
the Framers, In such a narrow -form the philosophy 
is useless. Because we cannot lnow how the 
Framers would vote on specific cases today, in a 
very different world from the one they Inew, no 
intent 1 onal 1 st of any sophistication employs the 
narrow version just described. 

There is a version that is adequate to the 
task. Dean John Hart Ely has described it! 

What distinguishes 1 nterpretlvism Cor 
intentionalismJ from its opposite is its 
insistence that the wort of the political 
branches is to be invalidated only in 
accord with an inference whose starting 
point, whose underlying premise, is 
fairly discoverable in the Constitution. 

That the complete inference will not be 
found there — because the situation is 
not lit ely to have been foreseen — is 
generally common ground. 

In short, all an 1 ntent 1 onal 1 st requires is that 
the te::t, structure. and history of the 
Constitution provide him not with a conclusion but 
with a major premise. That premise states a core 
value that the Framers intended to protect. The 
lntent 1 onal 1 st judge must then suppJ 7 the minor 
premise in order to protect the constitutional 
freedom in circumstances the Framers could not 
have foreseen. 


Borl , 23 San Diego Law Review at 626 (footnotes omitted). This 
position may seem to be a reasonable one. But, as the Harvard 
Law Review editors point out, its adoption would also change the 
course of constitutional interpretation! 


Contemporary adoption of this approach would 
also require a significant abandonment' of 
constitutional precedent. In its application of 
the Bill of Rights to the states, the Court has 
rejected Justice Blacl '5 position that the framers 
of the fourteenth amendment intended ‘"total 
incorporation" of the first eight amendments and 
has rested squarely on the view that the due 
process clause has independent substantive 
content. This result could not be defended bv 
either interpret 1 vist mode. 

The Constitution and the Family, 93 Harvard Law Review at 1171 
(footnotes omitted). 


Would Judge BorJ , if confirmed as an Associate Justice 
of the United States Supreme Court, follow the tenets of his 
1 ntentional 1 st theory and seel to persuade his fellow Justices to 
reject the substantive due process cases' 7 I cannot rule out the 



3039 


strong possibility that he would 
confirmation of that possibility 
Court of Appeals -for the District 


do just that. There 
in one of his opinions 
of Columbia Circuit. 


1 s some 
for the 


In Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), 
James L. Dronenburg appealed from a district court decisiqn 
upholding the United States Navy's action administratively 
discharging him for homosexual conduct. Dronenburg invoted the 
right of privacy established in Griswold and spelled out in later 
United States Supreme Court decisions as one basis for reversal. 
Judge Bor) , writing for a panel composed of himself, then-judge 
Scalia, and District Court Judge Williams of the Central District 
of California sitting by designation, affirmed the district court 
and rejected Dronenburg's constitutional claims. 

I do not discuss here whether Dronenburg was correctly 
decided. Rather, I want to focus on Judge Bor)'s method of 
handling the Supreme Court's substantive due process cases in his 
Dronenburg opinion. I believe that he read those cases as 
narrowly as possible, confining them strictly to their facts, in 
order to avoid a decision that his judicial philosophy would 
condemn as not grounded in the constitutional text. It does not 
detract from my point that a bare five-to—four majority of the 
United States Supreme Court subsequently confirmed in Bowers v. 
Hardwick, 106 S.Ct. 2841 (1986), that the Griswold line of cases 
should not be read to extend the right of privacy to protect 
private consensual homosexual intimacy. My criticism goes beyond 
the outcome of either decision. It is that Judge Bork made clear 
in his use of the Supreme Court precedents in Dronenburg that he 
was not ip sympathy with the Court’s substantive due process 
cases and that he would restrict them as narrowly as possible. 
He showed himself willing, in other words, to act in his capacity 
as a Judge in accordance with the constitutional theory he had 
propounded as a law professor. 







3040 


Here is what Judge Bor) said about the Supreme 
substantive due process cases, establishing the right of 
in his opinion in Dronenburg: 


Court ' s 
privacy 


These cases, and the suggestion that we apply 
them to protect homosexual conduct in the Navy, 
pose a peculiar jurisprudential problem. When the 
Supreme Court decides cases under a specific 
provision or amendment to the Constitution it 
explicates the meaning and suggests the contours 
of a value already stated in the document or 
implied by the Constitution's structure and 
history. The lower court judge finds in the 
Supreme Court's reasoning about those legal 
materials, as well as in the materials themselves, 
guidance for applying the provision or amendment 
to a new situation. But when the Court creates 
new rights, as some Justices who have engaged in 
the process state that they have done, seej. 

Doe y r Boi_ton^ 410 U. S. 179, 221-22 (1972) (White 
J. , dissenting); Roe y. Wade^ 410 U.S.113, le>7~6S 
(1973) (Stewart, J., concurring), lower courts 
have none of these materials available and can 
loo) only to what the Supreme Court has stated to 
be the principle involved. 

In this group of cases, and in those cited in 
the quoted language from the Court's opinions, we 
do not find any principle articulated even 
approaching in breadth that which appellant seels 
to have us adopt. The Court has listed as 
illustrative of the right of privacy such matters 
as activities relating to marriage, procreation, 
contraception, family relationships, and child 
rearing and education. It need hardly be said 
that none of these covers a right to homosexual 
people and their elected representatives, not 
through the u)ase of this court. 

Dronenburg v. Zech, 741 F.2d 138B, 1393—97 (1984) (footnote 

omitted). 


Five of Judge Bor) s colleagues on the Court of Appeals 
voted for rehearing en banc. In their dissent from the denial of 
a suggestion to hear the case en banc, they denounced the panel s 
failure to apply the Supreme Court precedents it cited. After 
criticizing the panel's "wholly unnecessary" and "extravagant 
exegesis on the constitutional right of privacy," they went on to 
say: 


We object most strongly, however, not to what 
the panel opinion does, but to what it falls to 
do. No matter what else the opinions of an 
intermediate court may properly include, certainly 
they must still apply federal law as articulated 
by the Supreme Court, and they must apply it in 
good faith. The decisions of that Court male 





3041 


clear that the constitutional right of privacy, 
whatever its genesis, is by now firmly 
established. An intermediate judge may regret its 
presence, but he or she must apply it diligently. 

The panel opinion simply does not do so. Instead 
of conscientlously attempting to discern the 
principles underlying the Supreme Court's privacy 
decisions, the panel has in effect thrown up their 
hands and decided to confine those decisions to 
their facts. Such an approach to "interpretation" 
is as clear an abdication of judicial 
responsibility as would be a decision upholding 
all privacy claims the Supreme Court had not 
expressly rejected. 

Dronenburg v. Zech, 746 F.2d 1579, 1580 (D.C. Cir. 1984) 
(dissenting opinion of Chief Judge Robinson, dissenting from 
denial of suggestion to hear case en banc). 

Would Judge Bor), if confirmed as Associate Justice 
Pori , vote to reject the reasoning used m Griswold and its 
progeny'" Would he vote to overrule some of the specific 
decisions that now rest on that substantive due process 
reasoning, such as Roe v. Wade” 7 Under questioning from members 
of this Committee, Judge Bor) properly declined to discuss 
specific cases, but he offered a description of the method he 
would use if as)ed to follow a Supreme Court precedent he found 
questionaLle. 

Under questioning from Senator Hatch or> Tuesday, 
September 15, 1987, with respect to a new case raising an issue 
similar to that in Roe v. Wade, Judge Bor) responded as follows: 

If that case or something lile it came up, 
and if the case called for a broad up or down, 
which it may not, I would first as) the lawyer who 
wants to support the right, "Can you derive a 
right to privacv not to be found in one of the 
specific aiTtendments in some principled fashion 
from the Constitution so I V now not onjv where you 
got iL but what it covers." 

There are rights not specifically mentioned 
i rs the Constitution, 1i)e the right to travel. 
r'ou )now, it's conceivable he could do that. I 




3042 


don't InoM, If he could not do that, I would say, 

"Well, if you can't derive a general right of 
privacy, can you derive a right to an abortion, 
or, at least to a limitation upon anti-abortion 
statutes, legitimately from the Constitution" 1 

If after argument that didn't sound lile it 
was going to be a viable theory, I would say to 
him, ”I would life you to argue whether this is 
the [ 1 nd of case that should not be overruled.' 1 
Because, obviously, there are cases we loot bacl 
on and say they were erroneous or they were not 
compatible with original intent, but we don't 
overrule them for a variety of reasons." 

Transcript, September IS, 1987, Afternoon Session, at pp. 2Z2-ZZ. 

The following day, September 16, 1987, under questioning 
from Senator Heflin, Judge EtorJ spelled out more fully the 1 l nd 
of argument that might be made concerning a specific right to an 
abor 1 1 on: 


"Well it seems to me, Senator, that it would 
be easier to argue a right to an abortion. I am 
not saying it would work , but it would be easier 
tG do that than it would be to find this 
generalized right of privacy. For example, I 
understand groups are worling — I have not seen 
their worl product, but I am told groups are 
worling on that. For example, some groups, I 
think, are trying an equal protection argument. 

Only women have this specific burden, and 
forcing a woman to carry a baby to term — some of 
the groups are trying, I suppose, is a form of 
gender discrimination.” 

Transcript, September 16, 1987, Afternoon Session, at pp. 160-fel. 



3043 


l.ster during that same exchange with Senator 
Heflin, Judge Bor I- spelled out his general attitude toward stare 
decisis, mating clear, however, that he was not Uni mg his 
discussion to any particular Supreme Court case: 

nil right. I thin! it has to be, in the 
first place, clea*^ that the prior decision was* 
erroneous. I mean, not just shaly, but really 
wrong in terms of constitutional theory, 
constitutional principle. But that is not 
sufficient to overrule. I have discussed those 
factors before, but I will mention them again, and 
a number of factors counsel against overruling. 

For example, the development of private 
expectations on the part of the citizenry. Is 
this an internallced belief and a right 7 The 
growth of institutions, governmental institutions, 
private institutions, around a ruling. 


The need for continuity and stability in the 
law, which is certainly always a factor to be 
weighed. The need for predictabi1lty in legal 
doctrine. I think the preservation of confidence 
in the Court by not saying that this crowd just 
does whatever they feel like as the personnel 
changes. And the respect due to the judgment of 
predecessors on a legal issue, if they have 
explained their judgment. 

Now, of course, against that is if it is 
wrong, and secondly, whether it is a dynamic force 
so that it continues to produce wrong and 
unfortunate decisions. 


That is the kind of thing you have to weigh and 




3044 


that is a very -fact-based consideration, a very 
particularistic consideration about whether this 
is the l-ind of case that goes one way or the 
other. I thmf the court has got to wort out a 
better theory o-f stare df£l 5 |s than it has now 
articulated. 

Transcript, September 16, 1987, A-fternoon Session, at pp. 162-65. 

Finally, Judge Borl indicated on several occasions 
during these Confirmation Hearings that he shared the commonly 
accepted view that the Supreme Court should be more willing to 
reenamine its constitutional precedents than its cases construing 
statutes. This is because, in the absence of a constitutional 
amendment, only the Court can correct its prior constitutional 
interpretations, while Congress or the state legislatures can 
change the Court's statutory interpretations by subsequent 1 
amendment. 

I 

How should this Committee evaluate Judge fcork's approach 
to the Gri_swol.d line of cases in light of his testimony quoted 
above'' Professor Laurence Tribe, during his appearance before 
this ComiTii ttee, asi ed how plausible it is to believe that some 
future lawyer arguing before the Court will be able to construct 
an entirely new constitutional argument, satisfactory to Judge 
Bor V , that would support a general right to privacy. I share his 
concern, and doubt whether that alternative is feasible. Nor do 
1 place much hope in Judge Bork's being persuaded by the efforts 
of some groups to bring the specific right to choose whether to 
have an abortion within the coverage of the Equal Protection 
Clause of the Fourteenth Amendment. Professor Tribe's testimony 
should lead this Committee to question whether Judge Borl 's 
approach to the Equal Protection Clause as it applies to women is 
a predictable, principled one. I believe Professor Tribe 
characterised it as a request for a "blant checf.” We are left, 
then, with Judge Bork's approach to stare decisis as a protection 
of the basic right to privacy. It is clear that he thint s 




3045 


§CI5b'9ld was wrong 1 / decided. It is undeniable that this line of 
cases is still developing. I can only conclude that Judge Bo rV 
would -find G>C!iy 2 lcJ the kind of dynamic precedent that continues 
to produce bad law. I question whether he would find that these 
cases should be left standing in the name of private expectations 
or public institutional stability. His present attitude toward 
these cases is disclosed by his reasoning in Dronenburg. I 
believe it is clear that Judge Borl's constitutional theory 
endangers the Griswold line of cases. 

I would like to mate one final point in conclusion. 
Several times during these hearings witnesses have referred to 
Judge Bort s insensitivity to the concerns of women. I thint his 
treatment of the facts of the Gri^swo^d case itself is an 
excellent example of that insensitivity. He has dismissed the 
Connecticut law prohibiting the use of contraceptives as a 
"nutty" law, and has argued that, as a practical matter, it could 
not have been enforced. He derided Justice Douglas's suggestion 
that police might actually invade the "sacred precincts of 
marital bedrooms” to search "for telltale signs of the use of 
contraceptives," because such searches would be prohibited by the 
Fourth Amendment. What Judge Borl did not acInowl edge, but what 
must certainly have been common knowledge in Connecticut during 
the 1 1 die this law was in effect, was the inhibition the law 
placed on women seel j ng medical advice. Women who needed to 
control their fertility for economic or medical reasons were 
literally forced to as! their physicians to commit a crime by 
ending them to prescribe contracept 1 ves. Moreover, this law 
deprived poor women who could not afford to consult private 








3046 


physicians of access to public clinics. Harriet F'll pel's 
letter to Senator Biden on behalf of herself and Catherine G. 
Rorabacl dated September 16, 1987, males that point forcefully. 
Ms. Pi 1 pel has represented the Planned Parenthood Federation of 
America since before 1940, and Ms. Rorabacl has represented the 
Planned Parenthood League of Connecticut since 1955. Ms. Pi 1 pel 
told this Committee that, following the 1940 Connecticut case of 
State v. Nelson, 126 Conn. 412, 11 A.2d 856 (19401 which upheld 
the Connecticut contraceptive statute until the decision in 
Griswold in 19t>5, "the nine Planned Parenthood clinics which had 
been providing contraceptive services until then were closed and 
remained closed. . .". An> judge who ignores the repressive 
impact of the Connecticut law upon Connecticut women, whose 
health and, in some cases, whose very lives depended on limiting 
their fertility is indeed insensitive to the concerns of women. 
When you, as members of this Committee, add Judge Bort 's 
insensitivity shown in his attitude toward the Griswold case to 
his insensitivity to the rights of minority groups that other 
witnesses have documented before you, I hope you will conclude 
that his nomination does not deserve your support. 





3047 


The Chairman. Thank you very much, Professor. 

Professor Richards. 

TESTIMONY OF DAVID AJ. RICHARDS 

Mr. Richards. Senator, I have submitted a longer written state¬ 
ment which I will briefly summarize. 

The Chairman. The entire statement will be placed in the 
record, Professor. 

Mr. Richards. The nomination of Robert Bork has raised in the 
mind of the nation the most compelling issues of interpretive phi¬ 
losophy, issues that absorb not only Justices of the Supreme Court 
and lawyers, but all Americans as a free people under the rule of 
law. 

Judge Bork’s critical views on the very inference of the constitu¬ 
tional right to privacy are at the core of his interpretive philoso¬ 
phy. His views on constitutional privacy are extreme and quite un¬ 
defended, I will argue, against a great weight of contrary argument 
and authority. His arguments raise reasonable doubts about wheth¬ 
er he understands the traditional role of the judiciary in the vigi¬ 
lant protection of the inalienable rights of a free people. The pro¬ 
tection of rights cannot reasonably or responsibly be left to any 
such doubt. 

My remarks address the interpretive proposition defended, by 
Bork for the last 15 years, that the constitutional right to privacy 
was improperly inferred from the Constitution. Bork’s attack on its 
inference fails on each of the grounds he specifies: text, history, 
democratic political theory, and judicial reasoning and role. 

First, the text of the Constitution, of course, expressly addresses 
the question of unenumerated rights and leaves us in absolutely no 
doubt that such rights exist and are as fully protected as enumer¬ 
ated rights; to wit, the ninth amendment. 

Second, the history of the drafting and ratification of the U.S. 
Constitution and Bill of Rights could not, I think, be clearer. The 
founders meant textual guarantees of unenumerated rights to be 
taken seriously. Indeed, agreement that unenumerated rights are 
fully protected is at the very center of the constitutional compact 
and, indeed, rests on the deepest convictions among the founders 
about the point of a written Constitution; namely, rights are not 
given by the Constitution but the Constitution’s authority rests on 
its respect for, its protection of the inalienable rights of free people 
made in the image of a just God. 

A little pertinent background history is relevant here. Many of 
the leading founders had expressly argued that the 1787 Constitu¬ 
tion properly lacked any full Bill of Rights because textual guaran¬ 
tees of such rights would wrongly be taken to justify the malign 
inference that no other rights were protected by the Constitution. 
James Iredell, later a Justice of the Supreme Court of the United 
States, made this point at the North Carolina ratifying convention 
with great force when he argued that a Bill of Rights would be, in 
his words, “a snare rather than a protection.” 

Iredell argued, and I quote, “A Bill of Rights as I conceive would 
not only be incongruous but dangerous, for no man, his ingenuity 
be what it will, could enumerate all the individual rights not relin¬ 
quished by the Constitution.” 

Iredell vividly describes and condemns precisely a perverse ori- 
ginalism like Judge Bork’s that would anachronistically limit the 



3048 


protection of rights to those enumerated rights protected in 1787 or 
1791. 

Americans, of course, nonetheless demanded a Bill of Rights, and 
several states ratified only on the understanding that a Bill of 
Rights would shortly be added. The answer to the dreaded negative 
inference was expressly to negative any such inference by the 
ninth amendment. The Bill of Rights was drafted and ratified on 
that understanding, and the ninth amendment is at the core of 
that constitutional consensus; namely, all inalienable rights, enu¬ 
merated and unenumerated, are reserved from State power. Ire¬ 
dell’s malign inference is expressly rebutted by the ninth amend¬ 
ment. 

Third, the political theory of the American Constitution rests on 
the premise of constitutionally guaranteed independent centers of 
self-government, not only federalism and the separation of powers 
but private spheres of inalienable human rights. For the founders, 
such inalienable rights included not only enumerated rights, like 
freedom of conscience and speech, but unenumerated rights pro¬ 
tecting, among other things, the sphere of associational liberty as¬ 
sociated with marital intimacy. 

The historical materials are quite clear. The founders assumed 
an unenumerated right to companionate marriage, a voluntarily 
formed association of intimate friendship and love through which 
persons realize the complementary fulfillment of essential needs 
for sustaining enduring personal and ethical value in living a com¬ 
plete life, including having and rearing children. The State may co¬ 
ercively abridge this right only on the same terms it may abridge 
any other fundamental right of a free people; namely, the abridg¬ 
ment is justified to protect compelling secular state interests. 

There would, thus, on this ground be no objection to the applica¬ 
tion of neutral criminal statutes to intrafamilial murders, wife-or 
husband-beatings or child abuse, no matter how rooted in intimate 
family life. 

Fourth, we in America, I believe, look to the judiciary to vindi¬ 
cate on terms of principle the inalienable rights to which Ameri¬ 
cans are entitled, and the judiciary has, as a matter of sound inter¬ 
pretive principle and role, elaborated the original understanding to 
protect unenumerated rights in general, and the right to marriage 
in particular. The Supreme Court properly infers this constitution¬ 
al right in Griswold because Connecticut’s brutal and callous ma¬ 
nipulation of marital sexuality—married couples could neither buy 
nor use contraceptives—inhibits one of the decisions central to 
companionate marriage: whether and when one will have offspring. 
Anti-contraception laws- 

Senator Thukmond. I do not want to interrupt, but your time is 
up. You are confined to 5 minutes, and if you go, the rest of them 
are going to go. Your statement will go in the record. 

Mr. Richards. Thank you, Senator. I will finish in a moment. 

Anti-contraception laws could not satisfy this burden of justifica¬ 
tion. 

The idea that unenumerated rights are foreign to the Constitu¬ 
tion distinguished neither liberal nor conservative jurisprudence. It 
is an idea foreign, I think, to the text, the history, the political 
theory, and the continuous judicial tradition of American public 



3049 


law as seen in Justice Harlan’s brilliant concurring opinion in 
Griswold. 

It is in the worst sense a radical idea outside the deep consensus 
on values of Americans as free people under the rule of law, and it 
is supremely paradoxical that such a claim should be sponsored by 
any idea of founders’ intent. For any reasonable reading of found¬ 
ers’ intent is quite clear: unenumerated rights are to be fully pro¬ 
tected. 

The Chairman. Would you please summarize in the next 30 sec¬ 
onds? 

Mr. Richards. We have the right, I think, to demand more of 
Justices of the Supreme Court than a rigid interpretive attitude, 
like Judge Bork’s, that against the weight of so much argument 
and authority can so playfiilly dismiss unenumerated rights as en¬ 
during values of American constitutionalism. 

Robert Bork's interpretive philosophy illustrates, as I earlier sug¬ 
gested, one of the founders’ fears: He is Iredell’s nightmare, an in¬ 
terpreter who would, in defiance of the ninth amendment, anach- 
ronistically betray the central premise of our constitutionalism, the 
protection on fair terms of all our rights. We need as a people to 
recapture our constitutional heritage of rights under the rule of 
law and, I submit, to demand of ourselves and certainly of our 
judges understanding of and respect for this great, this beloved tra¬ 
dition. 

Thank you. 

[The statement of Professor Richards follows:] 



3050 


TESTIMONY 

PROFESSOR DAVID A.J. RICHARDS 
HEARINGS ON THE NOMINATION OF ROBERT H. BORK 
TO BE ASSOCIATE JUSTICE OF THE 
UNITED STATES SUPREME COURT 
BEFORE THE SENATE COMMITTEE ON THE JUDICIARY 
SEPTEMBER 29, 1987 

CONSTITUTIONAL PRIVACY AND UNENUMERATED RIGHTS 

I am David Richards, professor of law at New York 
University? I teach constitutional law and am the author of 
various books and articles on constitutional law and 
interpretation, including a study of the American doctrine of 
religious liberty, free speech, and constitutional privacy 
( Toleration and the Constitution (New York: Oxford 
University Press, 1986)). I am happy to give the Senate 
Judiciary Committee my views on the central place of 
constitutional privacy in the American constitutional 
tradition. 

The nomination of Robert Bork has raised in the mind of 
the nation the most compelling issues of interpretive 
philosophy, issues that absorb not only justices of the 
Supreme Court and lawyers but all Americans as a free people 
under the rule of law. Judge Bork's critical views on the 
very inference of the constitutional right to privacy are at 


1 



3051 


the core of his interpretive philosophy. His views on 
constitutional privacy are extreme and quite undefended 
against a great weight of contrary argument and authority. 

His arguments raise, so I shall argue, reasonable doubts 
aits'"* vhether he understands the traditional role of the 
judiciary in the vigilant protection of inalienable rights of 
a free people. The protection of rights cannot reasonably or 
responsibly be left to any such doubt. 

My remarks address the interpretive proposition, 
defended by Robert Bork 1 , that the constitutional right to 
privacy was improperly inferred from the Constitution, 
because its inference lacks adequate support in text, 
history, democratic political theory, and sound judicial 
reasoning. I examine Bork's argument in the way any self- 
respecting scholar examines any argument by a fellow scholar: 
as an expression of conscientious interpretive convictions, 
meant seriously and to be taken seriously. So understood, 
Bork's attack on the inference of constitutional privacy 
fails on each of the grounds he specifies: text, history, 
democratic political theory, and judicial reasoning and role. 


1. Text and History: Unenumerated Rights and the 


1 See Robert H. Bork, "Neutral Principles and Some First 
Amendment Problems", 47 Ind. L.J. 1, 7-11 (1971) 


2 



3052 



The Constitution of 1787 and the Bill of Rights of 1791 
form a constitutional unit, because the ratification of the 
one was—in the view of leading ratifying states like 
Massachusetts, Virginia, and New York—premissed on the 
promise of the ratification of the other. These founding 
documents of American constitutionalism were deemed 
acceptable not because they exhausted the protection of basic 
rights but precisely because—in the view of the Founders— 
they expressly protected unenumerated rights as well. 

Indeed, agreement that unenumerated rights are fully 
protected is at the very center of the constitutional 
compact, and indeed rests on the deepest convictions of the 
Founders about the point of a written constitution, namely, 
that rights are not given by the Constitution, but that the 
Constitution's authority rests on its respect for and 
protection of the inalienable rights that persons have as 
free and rational persons made in the image of a just God. 


One of the most important and cogent challenges of the 
anti-federalists to the 1787 Constitution was its lack of a 
Bill of Rights 2 . The standard answer to this objection in 


2 Federalist Farmer , one of the best of the anti¬ 
federalist tracts, puts the argument with particular force. See, 
e.g., pp. 56-9, 79-86, Herbert J. Storing, ed.. The Antl- 
Federalist (1985). 


3 



3053 


the ratification debates over the 1787 Constitution was made 
by leading Founders like Wilson^ and Madison 4 at their 
respective constitutional conventions (Pennsylvania and 
Virginia) and by Hamilton in Federalist Papers ^. namely, that 
the theory of the 1787 Constitution was—in contrast to that 
of the British Constitution—foundationally republican < i.e. ■ 
contractarian): any powers not expressly granted to the 

federal constitution were reserved to the people, including 
the wide range of inalienable human rights that could not, in 
principle, be surrendered to the state. Indeed, a Bill of 
Rights was, on this view, a snare to the protection of such 
inalienable human rights, for the express protection of 
certain rights would justify the inference that rights not 
expressly protected were now subject to the illimitable power 
of the federal Leviathan; in effect, any gain in protection 
of rights from a Bill of Rights would be lost by this 
negative inference. A number of ratifying states were, 
however, very much concerned at the absence of a Bill of 
Rights, and ratified on the recommendatory understanding that 
a Bill of Rights would shortly be added to the 1787 
Constitution by the amendment procedure specified in the 

3 See, e.g., pp. 388, 470-1, Merrill Jensen, ed., 
Documentary History of the Ratification of the Constitution , vol 
II (1976). 

4 See, e.g., pp. 620, 626-7, Jonathan Elliot, Debates in 
the Several State Conventions on the Adoption of the Federal 
Constitution ■ vol. Ill (1836). 

5 No. 84, Federalist Papers (J.E. Cooke ed. 1961). 


4 


3054 


Constitution, including a general provision that there should 
be no negative inference from the express protection of 
certain rights that unenumerated rights are not also 
protected 8 . The consequence of this debate is, of course, 
the first ten amendments to the 1787 Constitution, namely, 
the 1791 Bill of Rights, including, as they do, the Ninth 
Amendment, which expressly rebuts the negative inference so 
feared by many Founders 7 . Any interpretive understanding of 
the protection of basic rights in the 1787 Constitution and 
1791 Bill of Rights must include protection of unenumerated 
rights as well. Indeed, the ratification debates and relevant 
texts could not be clearer that all these rights are 
textuallv protected 8 . The idea that these rights are "non¬ 
textual” is neither a historically nor a textually 
sustainable claim; it is one of the remarkable facts about 
contemporary views of constitutional interpretation that this 
claim should be so uncritically espoused, especially by 


6 For general studies of the call of ratifying conventions 

for a bill of rights, see Bernard Schwartz, The Great Rights of 
Mankind 119-159 (19 77 ) ; Robert A. Rutland, The Birth of the Bill 
of Rights 1776-1791 (rev. ed. 1983) . See, also, the 

Massachusetts' recommendations, pp. 177-8, Jonathan Elliot, op. 
cit. . vol. II; and Virginia's recommendations, pp. 657-661, id■ ■ 
vol. III. 

7 See, e.g., pp. 165-8, 177, 199-200, Bernard Schwartz, 

The Great Rights of Mankind (1977); pp. 34-41, 22-30, John Hart 
Ely, Democracy and Distrust (1980). 

8 CJ. John Hart Ely, Democracy and Distrust 34-41, 22-30 
(1980) (noting that in addition to Ninth Amendment, textual 
support for unenumerated rights can be found in privileges and 
immunities clause of article IV and in privileges and immunities 
and due process clauses of Fourteenth Amendment). 


5 



8055 


theorists allegedly concerned by fidelity to Founders' 
intent 9 . On any plausible theory of Founders' intent, such 
intent could not be clearer that such unenumerated rights are 
fully protected by the Constitution. 

We need interpretively to recapture the great worries 
about the very legitimacy of constitutional government that 
surrounded these debates about the usefulness of a Bill of 
Rights and the role of textual guarantees of unenumerated 
rights in the principled resolution of these worries. 

For purposes of the present argument, there is no more 
extraordinarily prophetic expression of the fears of Founders 
about a Bill of Rights not interpreted in a way hospitable to 
unenumerated rights as well than Iredell's argument at the 
North Carolina ratifying convention: 

"A bill of rights, as I conceive, would not only be 
incongruous, but dangerous. No man, let his 
ingenuity be what it will, could enumerate all the 
individual rights not relinquished by this 
Constitution. Suppose, therefore, an enumeration 
of a great many, but an omission of some, and that, 

9 In fact, there is good reason to believe that the 
Founders would have repudiated any narrow construction of 
Founders' intent of the sort often now urged. See, e.g., H. 
Jefferson Powell, "The Original Understanding of Original 
Intent", 98 Harv. I- Rev. 885 (1985). 


6 



3056 


long after all traces of our present disputes were 
at an end, any of the omitted rights should be 
invaded, and the invasion complained of; what would 
be the plausible answer of the government to such a 
complaint? Would they not naturally say, 'We live 
at a great distance from the time when this 
Constitution was established. We can judge of it 
much better by the ideas of it entertained at the 
time, than by any ideas of our own. The bill of 
rights, passed at that time, showed that the people 
did not think every power retained which was not 
given, else this bill of rights was not only 
useless, but absurd. But we are not at liberty to 
charge an absurdity upon our ancestors, who have 
given such strong proofs of their good sense, as 
well as their attachment to a liberty. So long as 
the rights enumerated in the bill of rights remain 
unviolated, you have no reason to complain. This 
is not one of them.' Thus a bill of rights might 
operate as a snare rather than a protection." 10 

That dire prophecy applies, a fortiori , to an interpretive 
style today, like Judge Bork's, that disabled us from 
elaborating reasonable arguments of principle that would, in 
effect, read out of the written constitution both the 

10 p. 149, Jonathan Elliot, op. cit. . vol. IV. 


7 



3057 


understanding and text addressed to this fear, intended 
precisely to insure the continuing protection of basic 
rights—both enumerated and unenumerated—as a matter of 
principle. 

Why, despite such prophecies, did the best anti¬ 
federalist arguments (like Federal Farnier ^M persuade people 
that the 1787 Constitution required a complementary Bill of 
Rights? Federal Farmer argued, in this connection, that any 
negative inference drawn from enumeration of certain rights 
could be expressly rebutted (by a provision like the Ninth 
Amendment for example), and then pointed to the inestimable 
value of a Bill of Rights: 

“We do not by declarations change the nature of 
things, or create new truths, but we give 
existence, or at least establish in the minds of 
the people truths and principles which they might 
never otherwise have thought of, or soon forgot. 

If a nation means its systems, religious or 
political, shall have duration, it ought to 
recognize the leading principles of them in the 
front page of every family book. What is the 
usefulness of a truth in theory, unless it exists 

See pp. 23-95, Herbert J. Storing, ed.. The Anti- 
Federalist (1985). 


8 



3058 


constantly in the minds of the people, and has 
their assent...--Men, in some countries do not 
remain free, merely because they are entitled to 
natural and inalienable rights; men in all 
countries are entitled to them, not because their 
ancestors once got together and enumerated them on 
paper, but because by repeated negociations and 
declarations, all parties are brought to realize 
them, and of course to believe them to be 
sacred. 1,12 

Paradoxically, Federal Farmer shares Iredell's worries that 
later generations living under an enduring written republican 
constitution will lose faith with the principles of 
republican morality, but—in contrast to Iredell—he 
perceives a bill of rights as a way of preserving such 
values, reminding each gene;ation of the arguments of 
principle through which they acknowledge one another as free 
and equal members of a co-operative community. If the point 
of a written constitution was, as Madison argued 12 , to use 
the deeply human sense of historical tradition in service of 
republican values, a bill of rights would, as Federal Farmer 
cogently argued, naturally complement and advance this end; 

12 pp. 80-1, Herbert J. Storing, ed., The Anti-Federalist . 

13 See No. 49, Federalist Papers . 


9 



3059 


thus Madison, despite earlier reservations 14 , is not 
unnaturally the central leader in the drafting and passage of 
the Bill of Rights 15 . But the capacity of the Bill of Rights 
to meet Federal Farmer 's hopes and quell Iredell's fears 
obviously turns on whether guarantees of rights—enumerated 
and unenumerated—are responsibly interpreted by each 
generation in service of enduring republican principles 
(establishing "in the minds of the people truths and 
principles they might never otherwise have thought of, or 
soon forgot” 16 ). 

We need then to make the best interpretive sense we can 
of the idea of unenumerated rights of the person if we are to 
remain faithful to an enduring written constitution, a 
constitution based on a theory of republican legitimacy 
! i.e. ■ the reservation of all inalienable human rights from 
state power). How should we understand these rights, and 
does the constitutional right to privacy appear among them? 

2. The Political Theory of American Constitutionalism 

Inalienable rights of the person—both rights enumerated 

14 See, e.g., pp. 620, 626-6, Jonathan Elliot, op. cit. . 
vol. III. 

15 See pp. 160-191, Bernard Schwartz, The Great Rights of 
Mankind (1977) . 

16 p. 80, Federal Farmer. Herbert S. Storing, ed., The 
Anti-Federalist (1985). 


10 


88-37*t 0-89-12 


3060 


and unenumerated in the 1787 Constitution, 1791 Bill of 
Rights, and the 1868 Fourteenth Amendment--define private 
spheres of moral independence from state power on terms of 
equal respect for all persons living in a cooperative 
community as democratic equals 17 . Both the equal liberties 
of conscience and speech—essential to any plausible 
understanding of the enumerated rights guaranteed against the 
federal government by the First Amendment and against the 
states by the Fourteenth Amendment—define, for example, 
essential spheres of independence from state power in which 
persons may form, express, and revise their conceptions of 
personal and ethical value in living and communicate with one 
another about these conceptions 18 . Constitutional protection 
of such independent spheres of conscience and speech 
enshrines a larger conception of the democratic 
accountability of state power to the independent conscience 
of people as democratic equals, namely, a benchmark of secure 
equal liberties from which state power can be fairly judged 
by each and every person to respect their rights and pursue 
the public good. Both enumerated and unenumerated rights are 
textually guaranteed as spheres of moral independence 
essential to the larger republican conception of government 
in service of a people who are self-governing not only in 

17 See, in general, John Rawls, A Theory of Justice 
(1971); Ronald Dworkin, Law's Empire (1986); David Richards, 
Toleration and the Constitution (1986). 

18 See id., pp. 67-227. 


11 



3061 


politics but in all spheres essential to the integral 
exercise of the essential moral powers through which people 
define, find, and foster values in living and in the 
communities in service of those values. 


This larger conception of essential spheres of moral 
independence naturally includes protection of the right of 
intimate association 19 that underlies, I believe, the 
traditional understanding, reflected in Griswold v. 

Connecticut 20 . of a fundamental right to marriage. That 
understanding is quite clearly implicit in the historical 
understanding of the scope of unenumerated rights assumed by 
the Founders 21 . Witherspoon, Madison's teacher at Princeton, 


19 See K. Karst, "The Freedom of Intimate Association", 89 
Yale L.J. 624 (1980). 

20 381 U.S. 479 (1965). 

21 For example, leading statesmen at the state conventions 

ratifying the Constitution, both those for and against adoption, 
assume that the Constitution could not interfere in the domestic 
sphere. Thus, Hamilton of New York denies that federal 
constitutional power does or could "penetrate the recesses of 
domestic life, and control, in all respects, the private conduct 
of individuals", p. 268, Jonathan Elliot, op. cit. . vol. II. And 
Patrick Henry of Virginia speaks of the core of our right to 
liberty as the sphere where a person "enjoys the fruits of his 
labor, under his own fig-tree, with his wife and children around 
him, in peace and security", p. 54, Jonathan Elliot, id., vol. 
III. And a leading Founder, Oliver Ellsworth of Connecticut, in 
rebutting the anti-federalist argument that the Constitution of 
1787 did not protect a free press, referred to other reserved 
rights, including the right to marriage, that could not be 
abridged: "Nor is [there a declaration preserving] liberty of 

conscience, or of matrimony, or of burial of the dead; it is 
enough that congress hage no power to prohibit either, and can 
have no temptation." To the Landholders and Farmers . Conn. 
Conrant . Dec. 10, 1787, reprinted in 14 The Documentary History 


12 



3062 


follows Hutcheson 22 in denominating marriage as a fundamental 
right of a free people, linking it to a more general right of 
associational liberty essential to the moral independence of 
a self-governing people 2 -*. It is not difficult to interpret 
that historical understanding as a coherent expression of a 
basic principle of protected moral independence worth 
carrying forward in the community of principle that underlies 
the American commitment to an enduring written constitution. 


The understanding of an unenumerated right to marriage— 
expressed in the historical understanding—reflects a larger 
historical conception of companionate marriage 24 , marriage as 
a voluntarily formed association of intimate friendship and 
love through which persons realize the complementary 


of the Ratification of the Constitution: Commentaries on the 
Constitution 398, 401 (J. Kaminsky & G. Saladino ed. 1983) 
[hereinafter Commentaries !: see also To the Holders and Tillers 
of Land . Conn. Courant . Nov. 19, 1787, reprinted in 14 
Commentaries , supra . at 139, 401 (referring to rights of personal 
liberty "more sacred than all the property in the world, the 
disposal of your children”). It is striking that the arguments 
of both leading proponents (Hamilton, Ellsworth) and opponents 
(Henry) of adoption of the Constitution converge on this private 
sphere of domestic married life. 

22 See Francis Hutcheson, A System of Moral Philosophy 
299 (1968). 

23 Witherspoon lists, as a basic human and natural right, 

"a right to associate, if he so incline, with any person or 
persons, whom he can persuade (not force)—under this is 
contained the right to marriage", John Witherspoon, Lectures on 
Moral Philosophy 123 (Jack Scott ed. 1982). 

24 See, e.g., Lawrence Stone, The Family. Sex and Marriage 
325-404 (1977). 


13 



3063 


fulfillment of essential needs for the mutual support, 
companionship, and understanding that is often the very basis 
for sustaining enduring personal and ethical values in living 
a complete life. That new conception of marriage is, I 
believe, root in a larger republican conception of self- 
governing people guaranteed the moral independence to form 
the range of communities essential to the integral expression 
of their moral powers 2 ^. Marriage is thus correctly 
characterized by Witherspoon as an instance of a larger 
republican right of democratic association because marriage, 
as much as religious or political or other associations, is 
one of the associations essential to sustaining the moral 
independence required for republican self-rule. State 
abridgement of such associational liberties on 
constitutionally inadequate grounds usurps the essential 
intellectual and emotional resources of the moral 
independence at the very foundation of republican respect for 
a self-governing people; it is, conversely, no accident that 
modern totalitarianism has warred on the value of republican 
self-rule in terms of the illegitimacy of private life: 

"There is no such thing as a private individual in National 


25 See, in general, Lawrence Stone, The Family. Sex and 
Marriage (tracing historical development of marriage from 
deferential patriarchy to expression of autonomous individual 
affection). On Locke's attack on patriarchal political morality, 
see Richards, "The Individual, the Family, and the Constitution: 
A Jurisprudential Perspective", 55 N.V.U. L. Rev. 1, 14-15 
(1980) . 


14 



3064 


Socialist Germany" 26 . 

3. Judicial Reasoning 

We in America look to the judiciary to "at least 
establish in the minds of the people truths and principles 
which they might never otherwise have thought of, or soon 
forgot" 27 . And the judiciary has, as a matter of sound 
interpretive principle and role, elaborated the original 
understanding to protect unenumerated rights in general and 
the right to marriage in particular to remind the people of 
the "truths and principles" of unenumerated rights. The 
Supreme Court thus properly infers the constitutional right 
to privacy in Griswold because Connecticut's coercive 
intrusion into marital sexuality (the married couples could 
neither buy nor use contraceptives) inhibits one of the 
decisions central to companionate marriage, i■e. . whether and 
when one will have offspring. The constitutional right to 
privacy begins in a case that concurrently involves privacy 
in another sense, namely, the egregious violation of the 
informational privacy interests protected by the Fourth 
Amendment that criminal prosecutions of contraception use 
would require (bugging the marital bedroom). But, as the 

26 p. 178, E.K. Bramstedt, Dictatorship and the Political 
Police (1945). 

27 pp. 80-1, Herbert J. Storing, ed., The Anti-Federalist . 


15 



3065 


Court clearly recognized in that case and made clear in later 
cases, the pertinent constitutional violation is independent 
of the Fourth Amendment violations; it turns on coercive 
intrusion into the right of associational liberty 
traditionally associated with marriage on terms that cannot 
satisfy the constitutionally required burden of 
justification. 

That burden of justification—familiar from 
constitutional rights like religious liberty and free speech- 
-requires that basic rights of the person can only be 
abridged on the ground of protecting general goods like life, 
liberty, and property, i.e. . the protection and vindication 
of the claims of persons for the neutral goods all would 
require to lead their lives as free persons irrespective of 
other ideological differences in basic religious and other 
commitments 28 . Anti-contraception laws cannot satisfy this 
burden of justification in contemporary circumstances. 

Indeed, if anything, contraception today advances the social 
good of population control, and the individual good of 
enabling married couples to exercise more control over their 
reproductive lives consistent with their larger personal and 
ethical ends. 


28 See pp. 244-47, David Richards, Toleration and the 
itution. 


16 



3066 


This understanding of Griswold is, of course, implicit 
in the concurring opinion in that case of Justice Harlan, and 
his related dissent in Poe v. Ullman ^ 9 . It rests on a larger 
conception of unenumerated rights of the person explicitly 
guaranteed by the text, history, and political theory of the 
United States Constitution, and the principled judicial 
protection of the unenumerated right of marital association 
against intrusive state prohibitions of intimate private life 
unsupported by the heavy burden of secular justification 
clearly required. 

Such a burden of justification can, in principle, be met 
by some criminal prohibitions bearing on the right of 
constitutional privacy. There would, I assume, be no 
constitutional objection to the application of neutral 
criminal statutes to intrafamilial murders, or wife or 
husband beatings, or child abuse, no matter how rooted in 
intimate family life and sexuality; nor should there be any 
objection to rape laws if applicable to married or unmarried 
sexual intimacies. In these cases, the constitutional burden 
of justification is met: countervailing rights of persons 
justify coercive interference into intimate relations. On 
the other hand, criminal prohibitions on use of 
contraceptives could not meet this burden of justification. 


29 367 U.S. 497 (1961). 


17 



3067 


It follows, a fortiori , that state burdens that do not 
thus coercively abridge fundamental rights are often 
justified on a less compelling shoving of justification. 
Certainly, anti-smoke pollution ordinances are thus justified 
on the ground of legitimate health concerns, and the kind of 
regulation at stake in Lochner v. Hew York 30 rests on 
justified concerns to equalize bargaining power in the 
marketplace. 

The American constitutional tradition reflects a deep 
consensus on fundamental unenumerated rights, a consensus 
shown by the fact that Justice Harlan--a great judicial 
conservative—saw constitutional privacy as a principled 
elaboration of this tradition. The idea that unenumerated 
rights are foreign to the Constitution thus distinguishes 
neither liberal nor conservative constitutional 
jurisprudence; for it is wholly foreign to the text, history, 
political theory, and continuous judicial tradition of 
American public law. It is, in the worst sense, radical: 
outside the deep consensus on values of Americans as free 
people under the rule of law. It is supremely paradoxical 
that such a claim should be sponsored by the rhetoric of 
Founders' intent, for, as I have shown, the best reading of 
that intent is undoubtedly that unenumerated rights are at 

30 198 U.S. 45 (1905). Robert Bork argues that Griswold 

cannot be distinguished from these cases at 47 Ind. l.J. 9-11. 


18 



3068 


the core of the American conception of constitutionalism. 

We have the right and the duty to demand more of 
prospective justices to the Supreme Court of the United 
States than a rigid interpretive attitude that, against the 
weight of so much argument and authority, can so playfully 
dismiss unenumerated rights as enduring values of American 
constitutionalism, for that view is driven by a kind of self¬ 
blinding ideology that shows respect neither for text, nor 
history, nor political theory, nor judicial role, for it 
would either uproot constitutional privacy entirely or 
narrowly cabin the doctrine in utterly unprincipled 
ways 31 . The Founders did not operate in such a morally 
vacuous universe, for they had fought a revolution and 
constructed a constitutional order for the fullest defense of 
human rights under the rule of law that had yet graced human 
history. Robert Bork's interpretive philosophy illustrates, 
as I earlier suggested, one of their fears: he is Iredell's 
nightmare, an interprer who—in defiance of the Ninth 
Amendment—would betray the central premisse of American 
constitutionalism, the protection on fair terms of all 
inalienable rights. We should, in this great bicentennial 

31 See, e.g., Franz v. United States . 707 F.2d 582, 

Addendum to the Opinion for the Court, 712 F.2d 1428 (D.C. Cir. 
1983) (Tamm, Edwards and Bork, concurring and dissenting), in 
which Judge Bork refused to give any constitutional protection to 
a father's powerful biological, emotional, and legal connection 
with his children because the Supreme Court had not specifically 
addressed this situation. 


19 



3069 


moment, remember tbe words of the founding generation about 
why we needed a bill of rights at all: namely, to "at least 
establish in the minds of the people truths and principles 
which they might never otherwise have thought of, or soon 
forgot" for "[m]en ...do not remain free, merely because they 
are entitled to natural and inalienable rights” 32 . We need, 
as a people, to recapture our constitutional heritage of 
inalienable rights under the rule of law, and to demand of 
ourselves and, above all, of our judges understanding of and 
respect for that heritage. 


pp. 80-1, Herbert J. Storing, ed.. The Anti-Federalist . 


20 



3070 


The Chairman. Thank you very much. Professor Sullivan, as you 
can see, the pressure mounts as it goes down. 

TESTIMONY OF KATHLEEN SULLIVAN 

Ms. Sullivan. Yes. The last person must go quickly. 

I have just two points to make, and I will try to make them 
quickly, Senator Thurmond. 

The first point: Judge Bork, when he came before the committee 
on September 15th, on the basis of both his writings as a professor 
and his writings and speeches since his appointment to the D.C. 
circuit, when he came before you on September 15th, he was on the 
basis of those writings—as my colleague, Professor Kay, has laid 
out—outside the mainstream on the right to privacy. I want to 
make that point a little bit more clearly in a moment. 

My second point is that nothing he said to the committee since 
September 15th indicates any departure from that place outside 
the mainstream on the right to privacy. That is. Judge Bork has 
made no confirmation conversion on the right to privacy in the last 
several weeks. 

Now, to try to clarify the point that Judge Bork was outside the 
mainstream on the basis of his writings as a professor and his writ¬ 
ings as a judge on the D.C. circuit, and speeches during that period, 
let me just say this: He says there is no right in the Constitution of 
privacy that protects parents’ rights to educate their children in 
private schools; no right of privacy in the Constitution that says a 
married couple is entitled to use contraceptives in their own bed¬ 
room; no right of privacy in the Constitution not to be sterilized by 
compulsion of the State; no right of privacy in the Constitution to 
marry someone whom you love but who is of a different race; no 
right of privacy in the Constitution to marry someone if you are a 
debtor and the State does not want you to marry. 

In every one of those instances, the Supreme Court has said 
there is a right of privacy that protects those activities. He has said 
there is not. 

Now, why is it so clear that he was outside of the mainstream? It 
is true the Court had been divided on some of those cases. Here is 
why he was outside the mainstream. 

There is no other sitting Justice currently on the Court and no 
other Justice on the Court in the last three decades, the period in 
which he has been writing and speaking on the subject, no other 
single Justice that has taken that absolute and categorical and ex¬ 
treme a position—if I may use that word—on the right to privacy. 

Justice Black, who is often cited as an enemy of unenumerated 
rights, signed the opinion in Skinner v. Oklahoma that said not 
only that certain poor criminals could not be sterilized; it said that 
marriage and procreation are basic civil, fundamental rights of 
man. It was a liberty case, not just an equal protection case. 

He also signed Bolling v. Sharpe, the case that said on the basis 
of the liberty clause in the fifth amendment that D.C. school chil¬ 
dren could not be segregated in their schools. And he also signed 
Loving v. Virginia, the case in which the Court held that not just 
equal protection, but also liberty, privacy protected the right to 
marry someone of a different race. He signed all those decisions. 
He did not write a concurrence; he did not say that he disagreed 
with the existence of the right to privacy. 



3071 


Similarly, Justices Stewart, White, Rehnquist, Scalia and O’Con¬ 
nor at different points have all signed opinions that upheld the 
right to privacy. They may disagree about its scope, but none of 
them has disagreed about its existence. That is what set Judge 
Bork apart from all contemporary Justices when he walked into 
this room. 

Now, has anything changed since he walked into this room? The 
unequivocal and perfectly clear answer is no. He has said some re¬ 
assuring things. He has said he is a man who appreciates privacy, 
and I have no doubt that is an honest truth. He has said the Con¬ 
stitution ought to protect a great deal of privacy in our society; 
every civilized person would want that, and I have no quarrel with 
that. I am sure that is the truth. But he has said nothing—noth¬ 
ing—to suggest that he believes there is any legitimate ground for 
finding a right to privacy in the Constitution. 

Oh, he has tried to reassure the committee. He said, “Well, these 
laws, these morals laws, they will not be enforced.” That would be 
cold comfort to Mrs. Inez Moore, sentenced to 5 days in jail because 
she violated an East Cleveland zoning ordinance that banned her 
from living with her sons and grandsons in the same house. That 
would be cold comfort to Bill Baird, who was criminally convicted 
for giving out a package of contraceptive foam; cold comfort to the 
poor people of Connecticut who were unable to get birth control in 
Connecticut at clinics for two decades because the Connecticut 
birth control law struck down in Griswold had led to the closing of 
those clinics. 

These laws are enforced; they can be and will be enforced. 

I will close, Mr. Chairman, with just one second point. He has 
also tried to reassure you that his ears are open to a new argument 
for the right to privacy. I submit, and I would be happy to elabo¬ 
rate on this later, that there can be no better argument than the 
great Justices Harlan, Powell, moderates and conservatives on the 
Court, have already given for the right to privacy. And if he has 
not heard the music in what they have said so far, I have no expec¬ 
tation that he will hear it in some new echo to come. 

Thank you very much. 

[The statement of Professor Sullivan follows:] 



3072 


TESTIMONY OF KATHLEEN M. SULLIVAN 

BEFORE THE SENATE JUDICIARY COMMITTEE 

ON THE NOMINATION OF JUDGE ROBERT H. BORK 

TO THE UNITED STATES SUPREME COURT 


September 29, 1987 


My name is Kathleen Sullivan, I am an Assistant Professor 
of Law at Harvard Law School, where I teach and write about 
constitutional law, criminal law, and local government law. I 
have served as co-counsel in six cases Involving constitutional 
issues before the United States Supreme Court, and have 
co-authored amicus curiae briefs in several others. I am pleased 
to appear at the Committee's invitation to testify about Judge 
Bork's stated views on the constitutional right of privacy. 

THE TRADITION OF THE RIGHT OF PRIVACY 

The constitutional right of privacy has a seventy-five year 
tradition in the United States Supreme Court. Since at least 
1923, the Court has held that government may not interfere with 
our family lives, or our most intimate decisions, unless it has a 
very good reason. Finding no such reason, the Court in 1923 
struck down a Nebraska law forbidding the teaching of foreign 
languages to children, noting that our tradition of liberty 
encompasses the right "to marry, establish a home and bring up 
children," among others. Meyer v. Nebraska , 262 U.S. 390, 399 
(1923). Two years later, the Court relied on Meyer to strike 
down an Oregon law making it a crime to educate one's children in 
private or parochial schools, holding that the law "unreasonably 
interfere[d] with the liberty of parents and guardians to direct 
the upbringing and education of children under their control." 
Pierce v. Society of Sisters , 268 U.S. 510, 534-35 (1925). While 
decisions from this era upholding sweeping economic liberties did 
not survive the New Deal, both Meyer and Pierce , and the 



3073 


fundamental principles of personal liberty for which they stand, 
have been repeatedly reaffirmed. 

In 1942, the Court recognized a further strand in our 
fundamental personal liberty: the right to be free of compulsory 
sterilization by the state. Oklahoma had a law providing that 
"habitual criminals" be punished by vasectomy. An Oklahoma 
chicken thief was so sentenced, because he had stolen not once 
but three times. A unanimous Supreme Court saved him from the 
surgeon’s knife. As Justice Douglas wrote for the Court, "We are 
dealing here with legislation which involves one of the basic 
civil rights of man. Marriage and procreation are fundamental to 
the very existence and survival of the race. The power to 
sterilize, if exercised, may have subtle, far-reaching and 
devastating effects. . . . There is no redemption for the 

individual whom the law touches. . . . He is forever deprived 

of a basic liberty." Skinner v. Oklahoma , 316 U.S. 535, 541 
(1942). 

In 1965, the Supreme Court again struck down a state law 
invading the private realm of marriage and procreation. This 
time it was a Connecticut law making it a crime for a husband and 
wife to use birth control devices in the privacy of their own 
bedroom. The seven Justices who joined forces to invalidate that 
law gave varying reasons for that decision. See Griswold v, 
Connecticut . 381 U.S. 479 (1965). Justice Douglas wrote for all 
but Justices Harlan and White that a right of privacy for marital 
intimacies is implied by other protections expressly included in 
the Bill of Rights, including the freedoms of speech and 
conscience and the freedom from unwarranted state intrusion into 
our homes. See 381 U.S. at484-85. Justice Goldberg wrote for 
himself, Chief Justice Warren, and Justice Brennan that the right 
of marital privacy, although not specifically listed in the 
Constitution, is protected by the Fourteenth Amendment's 
guarantee of liberty, read in light of ninth Amendment's reminder 
that "(t]he enumeration in the Constitution, of certain rights, 
shall not be construed to deny or disparage others retained by 
the people." See 381 U.S. at 486-99. Justice Harlan, echoing his 



3074 


earlier great and oft-quoted dissent in Poe v. Ullman , wrote that 
the Connecticut law violated the Fourteenth Amendment because it 
violated "basic values 'implicit in the concept of ordered 
liberty."* 301 U.S. at 500 (quoting Justice Cardozo's opinion in 
Palko v. Connecticut , 302 U.S. 319, 325). And Justice White 
likewise wrote that a law making family planning a crime deprives 
married persons of liberty without due process of law. See 381 
U.S. at 502-04. 

However different these various opinions were in their 
specific reasoning, they all shared in common this much: they all 
held that in our constitutional system, the government had better 
have a far stronger reason when it seeks to police the marital 
bedroom than it must provide when it polices the streets. 

By elaboration of the fundamental right first acknowledged 
in Meyer and Pierce , Skinner, and Griswold , the Supreme Court has 
since struck down a variety of other state laws making our 
decisions about marriage, childrearing, or childbearing a crime. 
As to marriage, in Loving v. Virginia , 388 U.S. 1 (1967), the 
Court unanimously struck down a Virginia law that, like the law 
of 16 other states at the time, forbade interracial marriage, on 
pain of a sentence to jail. As Chief Justice Warren wrote for 
the Court, the law not only violated the Fourteenth Amendment's 
ban on race discrimination, but also deprived Mildred Loving, a 
black woman, and Richard Loving, a white man, of liberty without 
due process of law, because "[mjarriage is one of the 'basic 
civil rights of man.'" See 388 U.S. at 12-13 (quoting Skinner). 
The Court has repeated this holding again in striking down laws 
interfering with the choice to marry by the poor and by those in 
prison. See Zablocki v. Redhall , 434 U.S. 374 (1976); Turner v. 
Safley , 107 S. Ct. 2254 (1987). 

The right to rear our families in the face of our neighbors* 
disapproval has likewise been reaffirmed. In Moore v. city of 
East Cleveland , 431 U.S. 494 (1977), the Court struck down the 
criminal conviction of Mrs. Inez Moore under a local zoning law 
that forbade her from living, in extended family fashion, with 
her son and her grandsons Dale and John. 




3075 


And as to the deeply private "decision whether to bear or 
beget a child," the Court has recognized its application to 
single as well as to married persons, and has struck down laws 
held to place an unwarranted governmental burden on access to 
contraceptives, Eisenstadt v. Baird , 405 U.S. 438 (1972); Carey 
v. Population Services Int'l , 431 U.S. 678 (1977), and on the 
choice to obtain an abortion. Roe v. Hade , 410 U.S. 113, 152-53 
(1973), and subsequent cases. 

JUDGE BORK'S CRITICISM OF THE RIGHT OF PRIVACY 

Writing both as professor and as lower-court judge, Robert 
Bork has repeatedly and scathingly attacked this entire line of 
Supreme Court decisions as illegitimate. As Professor and Judge 
Bork would have it, there is no consitutional right of privacy, 
and accordingly, although laws intruding on our private lives may 
be stupid, they may not be struck down. 

In his 1971 Indiana article, for example, he called Griswold 

an "unprincipled decision." Meutral Principles and Some First 

Amendment Problems , 47 Ind. L. J. 1, 9 (1971). Nor did he find 

fault merely with the reasoning of the Court: "The truth is that 

the Court could not reach its result in Griswold through 

principle." Id. (emphasis added). Why not? 

The reason is obvious. Every clash between a minority 
claiming freedom and a majority claiming power to 
regulate involves a choice between the gratifications 
of the two groups. When the Constitution has not 
spoken, the Court will be able to find no scale, other 
than its own value preferences, upon which to weigh the 
respective claims to pleasure. Compare the facts in 
Griswold with a hypothetical suit by an electric 
utiTTty~company and one of its customers to void a 
smoke pollution ordinance as unconstitutional. The 
cases are identical. 

I<L. Why are they identical? Because the "husband and wife [who] 
wish to have sexual relations without fear of unwanted children" 
are no different, constitutionally speaking, from the would-bs 
polluter who would prefer lower prices to cleaner air. id. at 
9-10. Both want their "gratifications." The majority would be 
"gratified," however, to stop them. Since the Constitution 
mentions neither contraceptives nor smoke, the Court must stand 
by and "let the majority have its way in both cases." id. at lo. 



3076 


In other words, when It comes to privacy, the Court must 
read the Constitution narrowly and literally. If there is 
nothing about "sexual gratification" in the text of the 
Constitution, then our constitutional liberty must stop at the 
bedroom door. And if the Constitution does not mention 
pregnancy, the our access to condoms, diaphragms, birth control 
pills, and safe legal abortions cannot be protected by the 
courts. 

Thirteen years later, Judge Bork agreed thoroughly with 
Professor Bork on this point. In Dronenburq v. Zech . 741 F.2d 
1388 (D.C. Cir. 1984), the Court held, per Judge Bork, that the 
consititutional right to privacy did not protect a Navy officer 
from discharge for homosexual conduct. That result, though 
deeply controversial, see, e.g., Dvorkin, Reagan's Justice . 31 
N.Y. Review of Books, at 27-31 (Nov. 8, 1984)(criticizing Judge 
Bork'3 opinion in Dronenburg ), was not in itself surprising. The 
right of privacy had never been extended to all consenting adult 
sexual conduct, and courts have long paid more deference to 
military than civilian rules where Internal discipline and morale 
are concerned. The same result could thus have been reached in a 
quick paragraph stating that, whether or not the right of privacy 
embraced consenting adult homosexual conduct, the military had 
adequate reason to forbid it in its barracks. What was 
surprising was that Judge Bork did nothing of the kind. Instead, 
he spent nearly two-thirds of his opinion asserting that previous 
privacy cases decided by the Supreme Court contained "no 
explanatory principle," and thus could be limited roughly to 
their facts — unlike all other cases elaborating constitutional 
rights. 741 P.2d at 1395. 

Nor has Judge Bork undergone any "confirmation conversion" 
on the matter of the right of privacy. Rather he has testified 
to this Committee that he continues to view Griswold and the 
cases that follow it as wrongly decided. At the same time, he 
has told the Committee that "no civilized person wants to live in 
a society without a lot of privacy in it." Transcript, Sept. 

16 , p. 45. Why, then, doesn't it trouble him to maintain that the 
privacy decisions are thoroughly wrong? 



3077 


He has given the Committee three reasons why not. None is 
satisfactory. First , he has said that we simply need not worry 
that such grossly intrusive as the Connecticut ban on birth 
control will ever really be enforced. See, e.g., Transcript, 
Sept. 16, pp. 49-50 {"if anybody had tried to enforce [the 
Connecticut law], he would have been out of office instantly and 
the law would have been repealed"); Transcript, Sept. 15, p. 188. 
In other words, Judge Bork suggests, trust the majority not to 
invade your privacy, and if it passes a law that does so, not to 
mean what it has said. 

But the powerless, the outnumbered, and the unorthodox 
cannot share such faith in the benificence of the powers that 
be. Judge Bork's declarations of faith in the good sense of 
local majorities would surely have been cold comfort to Hr. 
Skinner when he was sentenced in Oklahoma to involuntary 
vasectomy. Or to Mr. Baird when he was criminally convicted in 
Massachusetts for giving out a package of contraceptive foam. Or 
to Mrs. Moore when she was ordered to spend five days in jail 
for heading a household her neighbors deemed not nuclear enough. 
In other words, laws that invade privacy do not always fall into 
"desuetude" as Judge Bork suggests; rather, they have been and 
are enforced. Moreover, even when such laws are underenforced, 
they may lie about on the statute books like a loaded weapon, 
exerting a chilling effect. For example, the Connecticut statute 
struck down in Griswold had long effectively shut down birth 
control clinics in the state, a fact of critical importance to 
those who brought the lawsuit. See Griswold , 381 U.S. at 503 
(White, J., concurring in the judgment)("the clear effect of 
these statutes, as enforced,is to deny disadvantaged citizens of 
Connecticut, those without either adequate knowledge or resources 
to obtain private counseling, access to medical assistance and 
up-to-date information in respect to proper methods of birth 
control"). 

Second , Judge Bork has told the committee that there is 
always the possibility that "maybe somebody would offer" him a 
new argument for the constitutional right to privacy that he 



3078 


could accept. Transcript, Sept. 15, p. 136; see id. p. 135, p. 
143. There is little reason to hope, however, that any new star 
could now appear in the constitutional firmament to guide Judge 
Bork to the result the Court reached in Griswold and subsequent 
privacy cases. The various opinions in Griswold already mapped 
all the possible textual terrain on which the right of privacy 
might be located: the structure of limited government set forth 
in the Bill of Rights, the reservation of unenumerated rights in 
the Ninth Amendment, and the liberty clause of the Fourteenth 
Amendment. 


Moreover, Judge Bork's objections to the Supreme Court's 

elaboration of the right of privacy have already been eloquently 

answered by sitting members of that Court — including some of 

its most distinguished conservative and moderate Justices. To 

Judge Bork's objection that courts are simply imposing their own 

value preferences on the people when they uphold a right of 

privacy. Justice Goldberg has already answered as follows: 

In determining which rights are fundamental, judges are 
not left at large to decide cases in light of their 
personal and private notions. Rather, they must look 
to the 'traditions and (collective] conscience of our 
people' .... [and to] 'experience with the 
requirements of a free society."' Griswold , 381 U.S. 
at 493 (Goldberg, J., concurring). 


In other words, when the Court upholds the right to privacy, it 
is not just imposing its own values on society; it is saying 
instead that, whether it likes your family arrangements or your 
reproductive choices or not, they are yours and yours alone to 
make. 


Likewise, Justice Harlan long ago gave the most eloquent 

imaginable answer to Judge Bork's objection that the right of 

privacy is too broad, capacious, and undefined; he wrote: 

Due process has not been reduced to any formula; its 
content cannot be determined by reference to any code. 

. . . [Our] "liberty" is not a series of Isolated 

points pricked out in terms of the taking of property; 
the freedom of speech, press, and religion; the right 
to keep and bear arms; the freedom from unreasonable 
searches and seizures; and so on. It is a rational 
continuum which, broadly speaking, includes a freedom 
from all substantial arbitrary implostitions and 
purposeless restraints. 



3079 


Poe v, Oilman , 367 U.S. 497, 542-43 (Harlan, J., dissenting). 

And as Justice Powell echoed more recently, the right of privacy 
Is not to be "cut[J off ... at the first convenient, if 
arbitrary boundary"; rather judges must elaborate that right 
through "careful 'respect for the teaching of history [and] solid 
recognition of the basic values that underlie our society.’" 

Moore v. East Cleveland , 431 U.S. at 503 (plurality opinion). 
There is no reason to suppose that if these answers have not yet 
satisfied Judge Bork, others will do so in the future. 

Third, Judge Bork has suggested that even if no new argument 
were to persuade him that lavs infringing privacy merit 
heightened scrutiny, perhaps they might still be struck down as 
unreasonable. See, e.g., Transcript, Sep. 15, p. 133 ("there is 
always a rationality standard in the law”), p. 138 (suggesting 
that the sterilization law in Skinner might have been struck down 
as lacking a "reasonable basis”). The short answer to this is 
that rationality review has always involved virtually flat 
deference to legislatures, and to the extent that Judge Bork 
would now put teeth in that test, his standard is at least as 
broad, capacious, and undefined as the one he has criticized. 

In sum, Judge Bork's repeated criticism of the 
constitutional right of privacy stands unaltered by his testimony 
of two weeks ago. While the Committee may face the difficult 
matter of deciding what weight to place on Judge Bork's 
"confirmation conversion" with respect to other matters, it 
simply need not do so here, on the constitutional right of 
privacy, he has been and is consistent. And his hostility to 
that right has been greater than that of any other recent Justice 
-- moderate, conservative, or liberal. Because that right 
embodies nothing less than "the balance which our Nation, built 
upon postulates of respect for the liberty of the individual, has 
struck between that liberty and the demands of organized 
society," Poe v. Oilman , 367 U.S. at 542 (Harlan, J., 
dissenting). Judge Bork's views about that right should be of 
grave concern to the Committee and the Senate, 



3080 


The Chairman. Thank you very much. 

I really do regret that we do not have much more time because— 
I make no bones about it—my overwhelming concern about Judge 
Bork being on the Court from the outset as I became acquainted 
with his writings, his speeches, and his theories, relates to this spe¬ 
cific issue. This issue overriding all others, as far as this Senator is 
concerned. 

When I opened these hearings, I opened them on that note. Quite 
frankly, I believe it is not just whether or not Judge Bork, who was 
forthright when he spoke here in acknowledging ne found no gen¬ 
eralized right of privacy, and acknowledging that he had a differ¬ 
ent view from whence our rights came, as you pointed out. Profes¬ 
sor Richards. My opening statement indicated that I believed I 
have certain rights because I exist, not because the Government ac¬ 
knowledges they exist. That is contrary to his entire constitutional 
theory, and he did not deny that. 

Quite frankly, I am less worried about his going back and over¬ 
ruling cases that exist—because I do not think he could convince 
four Justices to overrule prior cases, although I think he would 
want to. If he were going to be intellectually consistent, he would 
attempt to. But what worries me is where we go from here. 

Just as in the early 1%0’s, actually from the 1940’s through the 
early 1960’s, a debate raged in this country about birth control, and 
Judge Bork clearly—and he acknowledges it—would have come 
down on the side I call the anti-liberty side of the argument. Who 
knows what the great debates relating to privacy will be in the 
next 10 years? Admittedly, they probably will not be contraception, 
but they may be invasions of our personal freedoms, our right, as 
Judge Bell said yesterday, to be let alone because of increased so¬ 
phistication and fear of new dilemmas that we face. 

God only knows what will happen in this country if the AIDS 
crisis reaches the proportions that has been suggested by the medi¬ 
cal community. What will happen to our rights of privacy in that 
atmosphere of hysteria that could develop? Where are our rights to 
privacy going to go and how will Judge Bork and others, if they 
cannot find the right existing in the first instance, rule in the 
future on those things we cannot even fully contemplate but we 
know government will be confronted with, and once again, as has 
happened in every generation from the beginning of this republic, 
there is a conflict between the rights of individuals and govern¬ 
ment? And where will Judge Bork come down? 

Will he be part of the progression of 200 years of history of every 
generation enhancing the right to privacy and reading more firmly 
into the Constitution protection for individual privacy? Or will he 
come down on the side of government intrusion? 

I am left without any doubt in my mind that he intellectually 
must come down for government intrusion and against expansion 
of individual rights. 

Now, I have one question. I have refrained from these perora¬ 
tions the last 10 days, but I have one question. I will start with 
you, if I may, Professor Sullivan. 

That is, we are told that obviously the State is not going to do 
things like pass birth control laws like Connecticut, and that we 
really do not have to worry because no legislator would ever enact 



3081 


legislation that infringed upon basic rights. Do you believe that to 
be true, and can you translate it into everyday terms so people un¬ 
derstand out there? They do not care about the past. They want to 
know what are the things we have to worry about in the future. 

A tough question, but can you speak to it? 

Ms. Sullivan. History shows, Mr. Chairman, the exact opposite 
of Judge Bork’s assurance that we can trust majorities, we can 
trust the good sense of the powers that be never to infringe priva¬ 
cy. History shows the opposite. 

The birth control law in Connecticut was enforced in the 1940’s; 
clinics were closed down. A law that seems unbelievable to us 
today, a product of old eugenic thinking, that said sterilize chicken 
thieves if they steal three times, not only was that law enforced, 
but the man it was enforced against, Mr. Skinner, was saved from 
the surgeon’s knife only by the U.S. Supreme Court. Various doc¬ 
tors and other people involved in the attempt to give medical 
advice about birth control were arrested. Bill Baird was arrested in 
Senator Kennedy’s home State of Massachusetts for distributing 
contraceptive foam. 

Mrs. Inez Moore, it seems incredible to us, here is a grandmoth¬ 
er. She lives in an extended family. One of her grandchildren’s 
mother had died, so the grandchildren, cousins, had come to live 
under her roof. This city of East Cleveland did not like extended 
families, thought they tended to be a nuisance, liked the nuclear 
family, and they said, “This is against our zoning law.” Incredible? 
Incredible that a majority would have this law. And Mrs. Inez 
Moore, the grandmother, for living with her grandsons Dale and 
John, who were cousins rather than siblings, was sentenced to 5 
days in jail, a sentence that- 

The (Chairman. When did that occur? 

Ms. Sullivan. It occurred because- 

The Chairman. When? How long ago was it? 

Ms. Sullivan. 1977. As recently as the last decade. 

The law was enforced. It was the Supreme Court, in a plurality 
opinion eloquently set forth by Justice Powell, that said the family 
is part of our tradition. There is a right of privacy and family to 
live with your grandsons, and the majority of neighbors who do not 
approve cannot stop you. 

So those examples suggest that history shows the right to privacy 
has been infringed, these laws have been enforced. Now, as to the 
future, Mr. Chairman, I think you are absolutely right. There is no 
reason to suppose that new and different laws will not come on to 
the horizon that threaten privacy in new and previously unfore¬ 
seen ways. We should bear in mind the words of the great conserv¬ 
ative Justice on so many issues. Justice Harlan, and his ideological 
heir, Justice Powell, that the Court should acknowledge the exist¬ 
ence of the right to privacy but tread carefully in defining its 
scope. You elaborate the right slowly, incrementally, over time, 
with attention to our tradition, our history, our basic underlying 
values. You do not go wild with it. You do not protect anything 
people say is private. You protect what our traditions say make us 
a free people. 

Now, whether that will come up in the area of new birth technol¬ 
ogies, new ways of producing children, or in the area of public 



3082 


health laws interfering with people’s sexual lives because of fear of 
disease, we cannot predict. But I believe that Justice Harlan, Jus¬ 
tice Powell have the better of the argument. They say the right 
exists, let us be careful about defining its scope. 

Judge Bork disagrees. He says it does not exist, and, therefore, 
he sees no need to engage in that argument that you refer to about 
what should its scope be. That is the difference between him and 
his contemporaries and other great Justices of the previous genera¬ 
tion on the Court. 

The Chairman. Thank you very much. My time is up, unfortu¬ 
nately. I wish I could pursue this, but I will yield to my colleague 
from South Carolina. Thank you. 

Senator Thurmond. I just want to welcome you all here. I have 
no questions. 

I might say, when I was in school, I did not have any pretty 
teachers like Ms. Kathleen Sullivan. 

Ms. Sullivan. Thank you kindly. Senator. 

Ms. Kay. Senator Thurmond, may I take this opportunity to say 
hello to you. I am a native of South Carolina, and you were the 
Governor of my State when I was there in high school. It is a pleas¬ 
ure to see you under these circumstances. 

Senator Thurmond. I am certainly glad to see you again, too. 

The Chairman. And I might say for the record, only Senator 
Thurmond could say what he just said and have a distinguished 
scholar look back at him and smile and say thank you. You are a 
rarity in American politics, Mr, Chairman. I wish I had the reser¬ 
voir of good faith that you possess. 

The Senator from Massachusetts. 

Senator Kennedy. Thank you, Mr. Chairman. 

As the panel has pointed out so well, the position of Judge Bork 
has been that there are no rights of liberty or privacy other than 
those specifically enumerated in the text of the Constitution. Pro¬ 
fessor Sullivan has given some practical examples of where legisla¬ 
tures, perhaps even the federal government or Congress, can enact 
certain specific laws which would infringe upon that right. 

I am wondering if members of the panel, perhaps Professor Rich¬ 
ards or the other members of the panel, could review with us for 
just a moment the Meyer case and the Pierce case. First of all, let 
me ask you this: 

As scholars, do you know any current Supreme Court Justice 
who holds the narrow and constricted view that Judge Bork has 
with regards to the rights of privacy? Just quickly, the panel. 

Mr. Richards. You mean current Justices? 

Senator Kennedy. Yes. 

Mr. Richards. No. 

Ms. Sullivan. No. 

Senator Kennedy. For the record, all three indicated no. 

Now, as I understand it, the development of this right, as Profes¬ 
sor Sullivan has pointed out, really has occurred in recent times. 
The testimony we have is that it can be traced back to perhaps the 
Meyer case and the Pierce case, both cases which Judge Bork has 
indicated had been wrongly decided. That has been his testimony, 
that both of those cases were wrongly decided. 



3083 


Rather than going through the elaborate facts of the Meyer case 
and the Pierce case, could you give us some sense about what the 
holdings were and whether the opinions were written by individ¬ 
uals who had a cautious or perhaps even a conservative philosophy, 
or whether those individuals were considered at the time as being 
outside of the mainstream for making those findings. As I under¬ 
stand it, those are really the watershed decisions in terms of 
paving the way for the current Supreme Court belief that these 
privacy rights are very real and should be protected. 

Could you tell us a little bit about those decisions, Professor 
Richards? 

Mr. Richards. These cases do come down early in this century, 
quite a time before Griswold. They are decided by, I think, both of 
them by McReynolds who is regarded, I think, as a quite conserva¬ 
tive jurist. They are rooted in a conception of a private sphere. 
Meyer involved the right of a parent to send their child to a 
German-speaking school. It is the right of a parent to decide that 
they want their child to be taught the German language, which the 
State had forbidden. And Pierce involved the right of a parent to 
send a child to a parochial school, which the State had denied. 

In both cases, the Court said this is a fundamental right of a 
parent over their child, and the State had not satisfied the requi¬ 
site burden that is required in these kinds of cases. 

Now, these cases are decided during a period that is called the 
heyday of substantive due process. Many of those cases in the 
1930’s are overruled, but these cases remain good law and, indeed, 
they are cited in Griswold as authority for the proposition that 
there is a private sphere of marriage and of a parent’s right over 
their children which has to be immunized from a State power—in 
the Pierce case in a kind of environment of religious intolerance; in 
the case of Meyer ethnic intolerance—and that parents have a 
right to control the lives of their children and to be free from this 
kind of religious or ethnic prejudice. And the Court has to protect 
them in these autonomy rights when there is not the requisite 
burden of justification. 

They are, I think, lineally connected to the Griswold line. I 
mean, it is that general area of a morally independent sphere of 
marriage, child-rearing and the like, and a very close scrutiny of 
State purposes in this arena, which sometimes cannot be satisfied. 

Ms. Sullivan. If I could just add, Senator, briefly, Meyer and 
Pierce, as Professor Richards so clearly stated, said we have a basic 
right, to quote Meyer, “to many, establish a home and to bring up 
our children.” And the State cannot interfere with those rights. 

Ever since those cases, the Court has said those personal liberties 
are protected; economic liberties protected by that same McReyn¬ 
olds Court are not as important. 

Judge Boris, disagrees with that distinction. He says a married 
couple in its bedroom has no more constitutional rights than a 
smokestack operator who is polluting the air. He says personal lib¬ 
erties are not more important to us than economic liberties. The 
Supreme Court has said the opposite, as Professor Richards said, 
and that is why Meyer and Pierce are still vigorous when other eco¬ 
nomic cases from that era are not. 



3084 


Senator Kennedy. Thank you very much. My time is up, Mr. 
Chairman. 

The Chairman. The Senator from Wyoming, Senator Simpson. 

Senator Simpson. Thank you, Mr. Chairman. I appreciate that. 

I listened to your opening remarks, and I do welcome you to the 
hearings. It is, again, fascinating for me to hear some of really the 
finest professors and scholars and academicians in the United 
States on both sides of the issue, with one exception: a gentleman 
from Arizona who came down very harshly on the personality and 
the activities of Judge Bork. I have not heard anybody yet say that 
Judge Bork was not a remarkable intellect, dazzling piece of work 
in the way his thought processes work, a man of integrity, a man 
of honesty. 

And then what really disturbs me, and this is one who love the 
law and practiced law for 18 years and did everything from reorga¬ 
nize railroads to replevin one-eyed mules. I am puzzled, really puz¬ 
zled how, after you have said all those things about Judge Bork— 
and forget the politics of it; that is very obvious, on both sides, and 
the advertising campaigns on both sides, forget all that. 

The question is, do you really feel good about just punching 
around in a law review article from 1971, or picking a statement 
about the bedroom, and pollution, and smokestack, which I have 
heard now 43 times since I have been here? 

And sterilization of women, and sterilization of men. And a poll 
tax, i.e., meaning racism. And do you really feel good about that, 
when you are so bright, and so articulate, that you have to go back 
in with a scalpel to mess around, and just find those little inflam¬ 
matory flame points of Judge Bork, and leave out, as intelligent 
people, leave out amicus brief after amicus brief where he protect¬ 
ed the rights of minorities and blacks, and women—a whole history 
of that—and opinion after opinion—135, or 106, depending on 
whose figures you are using—that were never overturned by the 
United States Supreme Court, and some 400 opinions—and the 
only way you get an opinion in real life is to have a majority of 
your brothers and sisters on the court go with you. 

So here are these opinions of Judge Ginsburg, joining him in 91 
percent of his activity, and Ab Mikva joining him in 72 percent, or 
78. My figures may be a little wrong. Pat Wald, 72 percent, 78 per¬ 
cent. And then exhaust your efforts, as intelligent people who 
know so well, that there is two sides to every single case, and to 
bring up things like the fact that he is against the family. 

He explained that case so beautifully. I hope you heard that, as 
Judge Bork seemed like he could explain it rather lucidly, since he 
was the one speaking on it, and not just go to that kind of argu¬ 
ment, kind of get it up on another level which would be more, it 
seems, appropriate, and more responsible, and more hearable. 

That is my question. 

Ms. Kay. Senator Simpson, may I respond to that? 

Senator Simpson. Yes. I would like that. 

Ms. Kay. Thank you. I think what we are talking about today is 
a point at which Judge Bork has not changed his position, and it is 
not necessary to look around for things that are inconsistent, be¬ 
cause he himself has been very consistent. 



3085 


He has arrived at a clear and coherent judicial philosophy that, 
as Professor Sullivan points out, puts him outside of the main¬ 
stream of the American judiciary on the privacy issue. 

He has continued to adhere to that position. He did so as a sit¬ 
ting judge on the D.C. circuit. He has done so consistently through¬ 
out these hearings. 

As recently as the very last morning of his testimony, under 
questioning by Senator Specter, he declined to state how he would 
respond to a new case under the Griswold line of precedents. 

I think that is if we look only at his published record, including 
the very most up-to-date utterances, we have to conclude about the 
Griswold reasoning in a future case, that, one, he would vote to 
construe it as narrowly as possible. He did that in Dronenburg. 

Two, he would not vote to expand it. He did not do that in Franz. 
And three, that freed from the restraints that bind a lower-court 
judge, he would probably vote to overrule it. 

I think that is fair to conclude from the record. 

Senator Simpson. Well, Mr. Chairman, again, time con¬ 
straints— 

The Chairman. That is all right. Since all three were mentioned 
and characterized- 

Mr. Richards. May I also make a comment on this? 

The Chairman [continuing]. You can each comment, if you 
would like. 

Senator Simpson. I would like that. Thank you. 

Mr. Richards. Judge Bork, when he came here, put his present 
approach to the article, and his views on this general arena, by 
saying it is possible there might be an alternative way to justify 
these results, but as I read his attitude to this whole general area, 
he has identified a logical possibility. 

It is possible, he said, there might be an alternative way, but the 
question, it seems to me, for the Senate and the American people 
is, is there any probability that he himself would actually protect 
these rights? 

And I think, not only from his most recent writings, but if you 
look at his general attitude in this arena, including things he said 
in these meetings, it is very doubtful, indeed. 

He said, for example, he placed much emphasis on reasonable¬ 
ness as a test. The suggestion is under a general reasonableness 
standard you might strike down anti-contraception, or perhaps 
abortion laws. 

But reasonableness is the weakest possible test, and against that, 
he has this extremely powerful theory which he has reaffirmed on 
the bench in Dronenburg and elsewhere, of moralistic majorities to 
have their way. He thinks that is a very powerful feature of our 
democracy. 

If you put together this very weak conception of reasonableness, 
this extraordinarily powerful theory of majoritarian moralism, 
there is no room for privacy. 

Privacy is a right against a certain kind of majoritarian moral¬ 
ism which is unjustified. These are his interpretive convictions, 
Senator Simpson—and I take them as interpretive convictions—I 
mean, honest views. There is no room for privacy in his jurispru¬ 
dence, and I think that means these rights are at threat, and that 



3086 


is something I think the American people and the Senate must 
attend to in the confirmation process. 

The Chairman. Professor Sullivan. 

Ms. Sullivan. Very briefly, I agree, Senator Simpson, we did not 
have to look with a scalpel for Judge Bork’s views on the right to 
privacy. We can all see them with the plain unaided eye. They are 
as plain as day, and have been plain in these hearings the last 2 
weeks, and I think we have given a fair rendering of them. 

The second point. You said there are two sides to every issue. 
Well, I beg to differ with you slightly. On the issue of the scope of 
the right to privacy—how far does it go, what does it protect, what 
is really private, is abortion a private matter, is sex a private 
matter between consenting adults, how far does it go? On the scope 
of the right to privacy, good and reasonable, fair-minded men and 
women differ greatly, and in good faith. Thiat has happened, it is 
happening now, and I expect it to continue as long as there is a 
right of privacy to argue about. 

But there has been no disagreement on the Supreme Court, for 
75 years, that there exists some right to privacy, and it is that dis¬ 
agreement of Judge Bork that we are focusing on. 

There are two sides to the issue on its scope, but there have not 
been, in our jurisprudence, two sides of the issue as to its existence, 
and that is what puts Judge Bork outside the mainstream. 

Senator Simpson. Well, Mr. Chairman, Judge Black had a 
thought on that, and Judge White had a thought on that on Roe v, 
Wade, so let’s kind of keep the old track open for everybody. 

Ms. Sullivan. On the scope. 

Senator Simpson. Yes. 

The Chairman. On the scope but not on the existence. 

Ms. Sullivan. Not on the existence. 

The Chairman. I think this is such a fundamental point, that if 
the Senator wishes to take more time to pursue it, I would be de¬ 
lighted to give it off the Chairman’s time in a future questioning 
period. 

But I want to make it clear, that as I understand what Judge 
Bork said, he disagreed with the existence of the a generalized 
right to privacy, and in that sense he is all by himself in the line of 
Justices for the past 75 years. 

Black, and everyone else, at some point acknowledged the exists 
ence of a right to privacy. They disagreed on the application of that 
right, and the scope. Judge Bork, as I understand it, and as I have 
read, and as I listened and as I questioned, is the only person to 
come before this committee in my 15 years, and the only person 
who has consistently denied the existence of such a constitutionally 
protected right. 

That is the debate. If I am wrong about that, I would like to be 
corrected now, and I would yield on my time in the future. I will 
refrain from asking questions of future witnesses, this is so funda¬ 
mental a point. 

Senator Simpson. Mr. Chairman, it is, indeed, and in one sen¬ 
tence let me say that Judge Bork—and he said it so clearly—his 
problem with the abstract constitutional right of privacy is that it 
has no inherent limits. That is what he was saying. Homosexual 
sodomy, or bestiality in your bedroom. Those are the things he was 



3087 


talking about, and that is what he was talking about as an acade¬ 
mician. And so I hope we can keep that together. 

And if you want to read the language of Justice Black, I urge 
you to do so again, as to what he said in that case of Griswold, and 
read the decision of Justice White. 

Somewhere, the right to privacy does not mean you just lay 
around and shoot up, and do that to the rest of the American 
public, and is that a right of privacy, to just—you know—do that? I 
do not know? 

The Chairman. The answer, if I- 

Senator Simpson. Is bestiality, homosexuality—that is what he 
was talking about. Let’s kind of keep honest here. 

The Chairman. Let me make one more point, and I have not 
done this the entire hearing, but this is such an important point. 

You are correct that Judge Bork said that there are no inherent 
limits. Ergo, he has concluded, because he cannot find a way to put 
limits upon it, like other judges have, because he does not want to 
be subjective, which he says he rejects out of hand and worries 
about judges. Because he cannot place—there are no inherent 
limits—he chooses to deny the existence of the right in the first 
instance. 

That is the point. No one here argues, no Justice, no Senator 
argues, that there are not limits to the right of privacy. 

No one argues that you have a right to beat your husband or 
wife in private. No one argues you have a right to shoot up in pri¬ 
vate. No one. I think they are—as we used to say when I practiced 
law—not as long as you—but they are red herrings. They beg the 
question. 

So, I want to get back to, he does say there are no inherent 
limits, but because he says he does not want judges to be subjec¬ 
tive, which would require them to place limits on the existence of a 
right, he chooses to avoid the subjectivity, in fairness to him, on 
the part of judges, by denying their right to recognize that such a 
fundamental right exists in the first instance. 

For if there is no fundamental right, then there are no grada¬ 
tions. There is no need to choose among gratifications. There is no 
need to make judgment calls, which suits his overall philosophy. 

That is the point, in this Senator’s view, and I promise I will not 
interrupt like this again. As I said, in 10 days or more I have not 
done it, but this is such a fundamental point, I feel compelled to do 
so. 

Unless the Senator from Wyoming wishes to speak, the Senator 
from- 

Senator Simpson. Well, you know, I would love to have a half 
hour set aside maybe at the end, so that we could discuss the right 
to privacy among the members of the committee. I think that 
might be well worthwhile. 

The Chairman. That may be the appropriate way to do it. 

Senator Simpson. I can see the intensity of your feeling about it, 
and all I am saying is that somewhere, along the line, that is going 
to be subjective, too. 

The Chairman. Clearly. 

Senator Simpson. What the moral majority’s right to privacy is, 
and what the minority within the minority’s right to privacy is. 



3088 


Now that is the way it is going to be, and I think that we want to 
remember, that if we are just going to say that this abstract right 
is limitless, and that is—you know—what he is guarding against, 
then it could be extremely dangerous. That is what he is saying. 
And somebody else is going to do the selection for you and me, at 
some point in time, unless it is stationed and anchored within the 
Constitution, and that is all he is saying. 

The Chairman. I think you have framed it well. In this Senator’s 
view, the only thing worse than it being limitless is for it not to 
exist. 

I yield to my friend from Ohio. 

Senator Metzenbaum. Thank you. I found that discussion very 
interesting, and I commend both the Senators and the professors 
because I think it was superb. 

Professor Sullivan, you commented on Judge Bork’s views on 
sterilization laws. I must tell you that I asked, as you probably 
know, Judge Bork about that subject, and the choice that was given 
to the women by the West Virginia company. 

And his response has played on my mind ever since then, when 
he said: “I suppose they were glad to have the choice—they appar¬ 
ently were—that the company gave them. The choice to be steri¬ 
lized, or to lose their jobs.’ 

I must be frank with you, that I think every one of us relates 
oftentimes to issues that come before this body. Maybe all of us in 
our everyday lives do. And as I thought about this question of forc¬ 
ing a woman to be sterilized, I thought about my four daughters, 
and the fact that sterilization would have precluded them from 
having the grandchildren that I love so dearly. And what it would 
do to a woman to be forced to make that decision. 

I am frank to say, I thought that the decision showed an insensi¬ 
tivity to women generally, and to the idea of reproductive choice 
more specifically. 

When I asked Judge Bork about this decision, he said that, quote: 
“It is simply upholding a federal agency to which we hold defer¬ 
ence.’’ End of quote. 

And I ask you as one who addressed herself to this particular de¬ 
cision: is that an adequate explanation of his decision, or was he 
just deferring to the agency, or was he actually making a state¬ 
ment on the issue? 

Ms. Sullivan. Well, Senator Metzenbaum, I do recall quite clear¬ 
ly your exchange with Judge Bork on this topic, and let me say a 
couple of points in fairness to Judge Bork. 

This was not a constitutional case, the Cyanamid case. It was a 
case about interpreting statutes that the Congress has passed, 
safety statutes for workers, and their implementation by the 
agency. So this is not like the Skinner case where we had the State 
of Oklahoma sterilizing Mr. Skinner. 

This is a case where we had a private company, regulated by the 
Congress, putting workers to a choice of whether they would con¬ 
tinue taking lead poisoning into their bodies that might endanger 
their future fetuses, or whether instead they should just sterilize 
themselves, and save themselves the future problem. 

So, in fairness, it is not a constitutional case, but what I think we 
can draw from it is at least this much. Judge Bork did not see the 



3089 


fundamental right to make our own decisions about procreation— 
whether we are going to have children—did not see that as creat¬ 
ing a special need for sensitivity in this case. He did not see that 
fundamental liberty to procreate as demanding a reading of the 
statute that would have protected these women. 

After all, getting sterilized is not just a safety precaution like 
putting on a gas mask when there are fumes in the factory or 
using an extra ladder when you are climbing up a height. 

Getting sterilized, as Justice Douglas said for the Court, unani¬ 
mous Court, in Skinner v. Oklahoma in the 1940’s—there is no re¬ 
demption from that. Once sterilized, there is no redemption. 

And I think finally. Senator Metzenbaum, to see it as a choice, 
an act of free will—^sterilize or feed my children—I think we all 
know that that is not a truly free choice, not one we would exercise 
if we had all the resources in the world, as those five women in the 
Cyanamid case did when faced with that choice. 

So I would preface my remarks by saying it was not a constitu¬ 
tional case, we cannot say this proves Judge Bork is for steriliza¬ 
tion. He is not for sterilization. And we cannot say Judge Bork be¬ 
lieves the State can sterilize. He has never said that. 

All we can say from Cyanamid, though—and it is an important 
point—is that he was not sensitive in lus reading of the statute to 
the importance of our powers of child-making, our right to procre¬ 
ate, when he read that statute, and that is a sensitivity I would 
hope that a Justice of the Supreme Court would have. 

Senator Metzenbaum. Mr. Chairman, I will have no other ques¬ 
tions, but I want to put into the record a memorandum of Septem¬ 
ber 28, 1987, from the General Counsel of the AFL-CIO to me on 
the facts in that case. 

The memorandum demonstrates, contrary to what Judge Bork 
asserted to the committee, that there were alternatives to the 
policy Judge Bork approved. And let me just quote, briefly, from 
that memorandum. 

Quote. “In spite of Judge Bork’s explanation, the actual factual 
and procedural record of the American Cyanamid case, as it was 
presented to him, does not fairly support the conclusion that the 
employer had no other reasonable alternatives. To the contrary, 
the union petitioners, and the Secretary of Labor had consistently 
argued in the proceedings before the Occupational Safety and 
Health Review Commission, that other non-injurious methods of 
protecting fetal health, such as medical monitoring, safety training, 
birth-control counseling and monitoring, and use of respirators, 
could effectively reduce the lead levels so as not to cause harm to a 
fetus.” End of quote. 

[Memorandum follows:] 



an on 


3090 


American Federation of Labor and Congress of Industrial Organizations 



8t5 Sixteenth Street, N W 
Washington, D C 20006 
(20 2 ) 637-5000 


EXECUTIVE council 


LANE KIRKLAND PRESIDENT THOMAS A. DONAHUE SECRETARY-TREASURER 


tAcnnss W QleaSOo 
AiMM Gfcank&r 
CTisrle* H Pillgrd 
Wiliam H Wynn 

0 Miller 

James £ Hatfield 

Vincent R Somt>i©|1© 

Marvin j 
■klhn I *yce 
LSrry Dugan Jr 
Gene Upanaw 


Frederick O Neal 
Edwatn T Haniey 
Kennem T Biayinck 
Jor«n DeCoficini 
John J Sweeney 
Baruaia Hytctimson 
Gerald W •*: Entee 
Paprtk J Camptwil 
Lynn A Williams 
ROOeri a Geor^me 
Jay Mazu> 


Murray H Finlay 
Angela Tosco 
William W Winoivnger 
Wayne E Glenn 
Frank Orojak 
Richard l Kilroy 
WiMiam H Bywaie r 
Owen Siecer 
Morion Bah> 

Milan Slone 
Lenore Miller 


September 28, 1987 


The Honorable Howard Metzenbaum 
140 Russell Senate Office Building 
Washington, D.C. 20510 

Dear Senator Metzenbaum; 

This letter and the memorandum attached hereto are prompted 
by your discussions with Judge Robert H. Bork concerning his decision 
in Oil, Chemical and Atomic Workers International Union v. 
American Cyanamid Co. , 741 F.2d 444 (blc7 Cir. 1984), during the 
Judiciary Committee's sessions f September 18 & 19, 1987 on Judge 
Dork's nomination to be an Assot tte Justice of the Supreme Court of 
the United States. 

Since that case involved t i international union affiliated with 
the AFL-CIO, we asked the union’s counsel for the papers in the 
court of appeals and, on the ba us of our review of those materials, 
prepared a memorandum for » >ur consideration — and should it 
prove, in your judgment, to be f any value, for the consideration of 
your colleagues on the Committee as well — comparing Judge Dork’s 
testimony with the legal points made in the union's presentation to 
the court. 


Sincerely, 



Laurence Gold 
General Counsel 


Attachment 


F' •> 



3091 


Memorandum on Judge Bork's Opinion and 
Testimony Concernin g the American Cvanamid Case 

On Friday, September IB and Saturday, September 19, 1987, 
Judge Bork was questioned by a number of Senators about the 
opinion he authored in Oi l, Chemical and At o mic Workers Union 
v. Americ an Cvanamid Co. . 741 F.2d 444 (D.C. Cir. 1984). That 
case held that the American Cyanamid Company had not violated 
the Occupational Safety and Health Act (OSHA) by adopting a 
policy which provided that every woman employee between the 
ages of 16 and 50 in a certain department had to submit proof 
that she had been surgically sterilized or else she would lose 
her job. No other options were given, nor were any exceptions 
allowed.Because lead levels in that department's air were 
so high as to possibly harm fetuses, American Cyanamid stated 
— and Judge Bork accepted — that this policy was a reasonable 
means of assuring that there was nc chance of a pregnant 
employee exposing a fetus to lead. 

As we now explain; an examination of the briefs and record 
of the proceeding in this case reveals that, both in his Senate 
testimony and his written opinion for the court. Judge Bork 
characterized the factual and procedural record in this case in 
such a way as to make the company's case appear far more 
sympathetic than a fair reading of the entire record 
justifies. Judge Bork implied that his dismissal of the 
challenge to the company's sterilization policy was based on 

A/ The policy was so inflexibly applied that one female 
employee was told that she would have to be surgically 
sterilized even though her husband had already been surgically 
sterilized himself. Petitioners Brief (Pet. Br.) at 4. 


88-374 0 - 89-13 



3092 


- 2 ~ 


the view that the company had no options other than to protect 
against fetal harm by excluding all potentially fertile women 
from these jobs. More specifically, his opinion and his 
testimony clearly suggested that it was undisputed that no 
feasible alternatives to this sterilization rule were available 
to the company. However, an examination of the briefs and 
record of the case shows that this very issue — whether any 
such feasible alternative existed — was in fact one of the 
most hotly disputed issues in the case, and had not previously 
been the subject of any finding in the administrative decision 
under review. 


I. ju d ge f ork's Explanation of the Ces s 

All agree that the two provisions of OSHA relevant to this 
case are as follows: First, the general duty clause, which 
requires that. 


Each employer . . . shall furnish to each 
of his employees employment and a place of 
employment which are free from recognized 
hazards that are causing or are likely to 
cause death or serious physical harm to his 
employees." (29 U.S.C. § 6S4(a)(i)>. 

And second, the statement of purpose and policy of the Act, 

which was designed to guide intepretation of the general duty 

clause: 


"The Congress declares it to be its purpose 
and policy ... to assure so far as 
possible every working man and woman in the 
Nation safe and healthful working 
conditions. . . .” <29 U.S.C. § 651(b)). 


3093 


3 - 


As we read Judge Bork's answers to Senators' questions, 
he decided that American Cyanamid did not violate these duties 
in large part because the company could not reduce the lead 
levels to a point that was safe for fetuses, and thus, had no 
choice but in some way to rid its department of all women who 
might become pregnant. In essence. Judge Bork said that the 
company had to choose between two undesireable options: it 
could either require sterilization as a condition of continued 
employment, or it could adopt an even more extreme policy of 
prohibiting all women employees of childbearing age from 
working in the department at all. 

This view was clear in his first response to Senators' 
questions on the case, where Judge Bork quoted from his opinion 
to explain that this was the choice the company faced: 


"[A]s I wrote: 

'It is important to understand the 
context in which this case arose and 
the task that it has set for this 
court, American Cyanamid found, and 
the Administrative Law Judge agreed, 
that it could not reduce ambient lead 
levels in one of its departments 
sufficiently to eliminate the risk of 
serious harm to fetuses carried by 
women employees. 

‘The Company was thus confronted with 
unattractive alternatives: it could 
remove all women of child-bearing age 
from that department, a decision that 
would have entailed discharging some 
of them, and giving others reduced pay 
at other jobs; or the company could 
attempt to mitigate the severity of 
this outcome by offering continued 
employment in the department to women 
who were sterilized....’ (quoting 741 
F.2d at 445). 


* * * 



3094 


- 4 


"[M]y opinion was narrow, .... It noted — 
... that the case might be different if the 
employer had offered the choice of 
sterilization in order to maintain an 
unlawfully high lead level. But the fact 
is the company could not get the levels 
down, and the company was charged only 
because it offered women a choice. 

* * * 

“So the case is simply about offering women 
who did not want to be discharged or sent 
to lower-paying jobs a choice. That's all 
it was about.” (Fed. News Service 
Transcript (Tr.), pp. 21-1 - 21-2 
(9/1B/87)). 


Later, Senator Metzenbaum protested: 

"Congress said no hazards in the workplace, 
but you wrote an opinion which said it’s 
okay for a company to achieve safety at the 
expense of women by preventing its female 
employees from ever having children. (Tr. 
p. 22-1 (9/18/87)). 

Judge Bork explained that: 

”[T]he company did not achieve safety at 
... the expense of women. They could not 
get the lead levels down." (Id.) 

And, when Senator Biden specifically asked: ”[H]ad you, . . . 

concluded that eliminating lead was economically feasible . . . 

then the company would have lost and the plaintiffs would have 

won?" (Tr. 32-1 (9/18/87), Judge Bork agreed. (Id.). 

The following day, in colloquy with Senator Hatch, Judge 

Bork reasserted even more emphatically that the Company simply 

had no more satisfactory options: 


"This was a case with no satisfactory 
solution for anybody. I mean there was 
nothing to do. There was no satisfactory 
way to solve it. 


* * * 



3095 


- 5 - 


"So the company and the workers were both 
faced with what I called in my opinion, a 
most unhappy choice. 

ft ft ft 


"1 would not want to be an official of that 
company trying to make that choice." (Tr. 
31-2 - 32-1 (9/19/37)). 


Ill. What the Record of the Case Actually Showed 

In spite of Judge Bork's explanation, the actual factual 
and procedural record of the American Cyanamid case, as it was 
presented to him, does not fairly support the conclusion that 
the employer had no other reasonable alternatives. To the 
contrary, the Union Petitioners, and the Secretary of Labor, 
had consistently argued in the proceeding before the 
Occupational Safety and Health Review Commission (OSHRC) that 
other, non-injurious methods of protecting fetal health (such 
as medical monitoring, safety training, birth control 
counselling and monitoring, and use of respirators) could 
effectively reduce the lead levels so as not to cause harm to a 
fetus. This was clearly explained in the briefs submitted to 
Judge Bork and the other members on his panel: 


"OCAW and the Secretary [of Labor] offered 
in the Commission proceedings to present 
evidence to establish that Cyanamid could 
have provided protection to fetuses without 
requiring the surgical sterilization of 
employees, and they sought discovery to 
refute Cyanamid's opposing contentions. 

But because the ALJ, at Cyanamid‘s urging, 
disposed of the case by adopting the 
threshold position that the sterilization 
rule was not a hazard cognizable under the 
Act, a factual record was not made on this 
seriously disputed point." (Pet. Rep. Br. 
at 20; see generally Petitioners' Brief 
(Pet. Br.) at 13, 40-41; Pet. Rep. Br. at 
19-27). 




3096 


- 6 - 

Precisely because the petitioner unions were never given 
the opportunity to present evidence to establish this point, 
the unions argued that the Court of Appeals should remand the 
case to the OSHRC for an evidentiary hearing. And, in support 
of this argument for remand, their brief explained that in an 
earlier decision, the D.C. Circuit Court of Appeals had 
reviewed and affirmed a finding by the Occupational Safety and 
Health Administration that precisely these sorts of 
non-injurious measures that they raised could be successful in 
protecting fetuses and this allowing women to work in the lead 
industry. See United Steelworkers of American v. Marshall . 647 
F.2d 1189, 1257 (1980). 

Without even acknowledging that this argument was made by 
the Union and the Secretary, Judge Bock's opinion affirmed the 
dismissal of the case. In both his opinion and his testimony, 
he simply passed by petitioners' repeated contentions that, if 
given a chance, they could prove that non-injurious fetal 
protection methods were available as an alternative to the 
sterilization policy. Petitioners Reply Brief (Pet. Rep. Br.) 
at 24 . 

It is a basic legal rule that a claim cannot properly be 
dismissed until a party has had an opportunity to prove its 
contentions on the relevant facts. But Judge Bork's decision 
foreclosed that opportunity in this case. 



3097 


Senator Metzenbaum. Thank you, Mr. Chairman. 

The Chairman. Thank you very much. Senator Grassley. 

Senator Grassley. Thank you, Mr. Chairman. 

I have listened with interest to those arguments advanced by 
people who promote the view of a generalized right to privacy, and 
I conclude that this generalized right is little more than a loaded 
gun that is laying right there on the table, just waiting for some 
judge—he, or she—to pick it up and use it as they see fit. 

It seems very undefined, without limits or guidelines for the 
courts on how to interpret it, and, consequently, no guidelines to 
citizens on how to order their lives according to this new general 
right. 

Now for those of you who say that no Justice in 75 years has put 
any limit on this generalized right to privacy, I think we ought to 
look at what Justice Black said about that in Griswold, 

“The law—quoting Justice Black—the law is every bit as offen¬ 
sive to me as it is to my brethren, who, reciting reasons why it is 
offensive to them hold it unconstitutional. But I cannot subscribe 
to their conclusion that the evil qualities they see in the law make 
it unconstitutional. The Court talks about a constitutional right of 
privacy as though there is some constitutional provision forbidding 
any law ever to be passed which might abridge the privacy of indi¬ 
viduals.” 

“But there is not,” he says. And then going on: “Privacy is a 
broad, abstract, and ambiguous concept that can easily be shrunk¬ 
en in meaning, but which can also easily be interpreted as a consti¬ 
tutional ban against many things other than searches and sei¬ 
zures.” 

“I get nowhere in this case by talking about a constitutional 
right of privacy as an emanation from one or more constitutional 
provisions. I like my privacy as well as the next—Justice Black 
says—but I am nevertheless compelled to admit that government 
has a right to invade it, unless prohibited by some specific constitu¬ 
tional provision.” 

Now Justice Black, who was appointed by Franklin Delano Roo¬ 
sevelt, obviously he is known as a great defender of individual lib¬ 
erty. You would all agree with that, wouldn’t you? 

Ms. Sullivan. Certainly. 

Ms. Kay. Absolutely. 

Mr. Richards. Certainly. 

Senator Grassley. I think we would also have to agree that he is 
lucky that he is not before this committee today because he prob¬ 
ably would not be confirmed. 

Justice Stewart, writing in the same Griswold case said, and I 
want to quote: “I think this is an uncommonly silly law, but we are 
not asked in this case to say whether we think this law is unwise, 
or even asinine. We are asked to hold that it violates the Constitu¬ 
tion, and that I cannot do. With all deference, I can find no such 
genera] right of privacy in the Bill of Rights, in any other part of 
the Constitution, or in any case ever before decided by this court.” 

Now, for this panel, I would like to try to get a handle on where 
you think that this general right of privacy might take us, where it 
extends to, and if you could, I would like to have a yes or no 
answer. 



3098 


For instance, is prostitution protected by your generalized right 
of privacy? That could be interpreted as being majoritarian moral- 
ism that you talk about, but is that protected by the generalized 
right of privacy? 

Mr. Richards. Senator, I would like to distinguish two questions, 
if I may. 

Senator Grassley. Well, I would like to have a yes or no answer. 

Mr. Richards. Well, I think I would be able to answer if I could 
draw this distinction because it would help you understand my 
views. 

It seems to me there is an abstract question of principle in Amer¬ 
ican public law. Is there a right of private life associated particu¬ 
larly with marriage and child-bearing, protected from a very heavy 
burden of—which is protected against State intrusion unless there 
is a very heavy burden of justification. 

And it seems to me the dominant view in our tradition, histori¬ 
cally, textually and the like, is that there is such a right, and, 
indeed, that Griswold is a paradigmatic example of a statute which 
lacks the requisite justification and was probably struck down by 
the Supreme Court on that ground. 

Now lawyers, and Americans disagree widely on the scope of 
that right, and on the grounds on which it might be abridged, and 
there is a range of different views which people take on that issue. 

I mean, some of us might include homosexuality in the scope of 
privacy, might have problems including other things. 

Senator Grassley. Is homosexual marriage included in your 
right of privacy? I mean, it seems to me like we have got to get to a 
point, if Judge Bork is so bad, and you espouse that he is too 
narrow on the right to privacy, then how far does your point of 
view take our society away from the community standards that 
have judged a lot of the political decisions that are made in this 
country? 

Ms. Sullivan. Senator Grassley, I think—if I may interject. 

Senator Grassley. Surely. 

Ms. Sullivan. If the question here were whether Judge Bork 
sees the right of privacy as wide enough for us, as encompassing all 
the things we personally might think ought to be private, none of 
us would be here. Because we all agree that reasonable men and 
women can disagree about the scope of the right to privacy. 

Some might think prostitution involves the marketplace. Com¬ 
merce. That is not sex for love, it is sex for money, and therefore it 
is not private. Others might disagree. 

That is not why we are here. Why we are here is because Judge 
Bork is not asking us to get to that line-drawing issue. He says 
there is no right of privacy so you do not get to the line-drawing 
issue. 

Now as to both Senator Simpson’s and Senator Grassley’s 
remark that this right of privacy is uncabined and limitless and as 
wide as the sea—well, there is just no evidence for it. 

The Supreme Court has not taken it to—— 

Senator Grassley. Well, what are the limits? What are the 
limits as far as you are concerned? 

Ms. Sullivan. One example given by the Supreme Court two 
terms ago was it did not extend by —a five to four decision—it did 



3099 


not extend the right of privacy to consensual adult homosexual in¬ 
timacy. 

Senator Grassley. Why, because of community standards? 

Ms. Sullivan. Because in good faith, trying to draw the line as is 
the appropriate task of the Supreme Court—if they stopped engag¬ 
ing in line drawing they would be as out of work as the NFL. Line 
drawing is their business. 

They drew the line, in large part, because they could not identify 
that with the traditions of our country, the values underlying our 
people at the time of the framing of the Bill of Rights. 

Senator Grassley. And the Supreme Court is not the only one 
making that determination in our society, under our checks and 
balances system of government. 

Ms. Sullivan. I am trying to give you an example, sir, of the 
limits the Supreme Court has drawn. It is not limitless. The Su¬ 
preme Court has not said everything in the world that any academ¬ 
ic might invent is private. 

They have said look to our traditions, look to our values. Some of 
us may disagree with that decision. That is not why we are here. 
That is not why we are here. 

We are here because we think it is dangerous to deny the exist¬ 
ence of the right. 

We fully accord anyone his right to argue about its scope. 

Senator Grassley. Well, Mr. President, or, Mr. Chairman, I 
think my—— 

The Chairman. That is all right. I like either address. The first 
one does not count for much anymore for a while, but the second, 
hopefully. 

Senator Grassley. You know, we could go on—and I am going to 
conclude. I am not going to ask any more questions. 

The Chairman. That is all right. This is important. 

Senator Grassley. But I could ask the same questions about 
bigamy and polygamy. They have mentioned homosexual acts. 
Incest, I asked of Professor Hufstedler last week. Hard drugs have 
already been brought up. 

But I think that particularly this year, in the bicentennial of our 
Constitution, we ought to heed the words of Jefferson on the role of 
courts in a democracy, because his saying puts the proper perspec¬ 
tive on this whole conversation, the whole debate we are having 
here this morning. 

He says, “Our peculiar security is the possession of a written 
Constitution. Let us not make it a blank paper by construction.” 

I urge people to consider the dangers of turning the Constitution 
into such a meaningless blank document. After all, an interpreta¬ 
tion that permits the creation of new rights out of thin air can be 
just as easily used to take away those fundamental rights. 

The Chairman. Thank you, Senator. The Senator from Arizona. 
Senator DeConcini. 

Senator DeConcini. Mr. Chairman, thank you. 

This area is one of the greatest concerns I have because I draw 
my own lines on the right of privacy and oppose the Roe v. Wade 
case for whatever basis it was developed on the right of privacy. In 
reading some of the opinions there is reference to that. 



3100 


But I feel very strongly, as you do, Ms. Sullivan, that it is impor¬ 
tant that at least you would be able to recognize that the right of 
privacy is in the Constitution, as the Supreme Court has. 

And in your testimony, and also. Professor Kay, in yours, and 
perhaps yours, Mr. Richards—I cannot recall—you indicate that 
current and former members of the Court have recognized this 
right to privacy, even current members such as Scalia and O’Con¬ 
nor and Rehnquist, certainly conservative, “mainstream conserva¬ 
tive” members. 

I wonder if it is possible for you to—maybe not within 3 or 4 
minutes—supply us some examples of that in cases, or, if you 
would care to attempt to start till the red light goes on there, be¬ 
cause I think it is important. 

It is going to weigh heavily on me, that area, and I do not know 
if he is out of step with these other judges. I have been told that, 
but I would like to see some examples, if you can. 

Ms. Kay. Senator DeConcini, just for a moment, and then I will 
yield to Professor Sullivan. 

I think the point is not so much whether his outcome would be 
different from those of other judges. 

Senator DeConcini. I know that. I am talking about the concept 
or the capability of finding it there, and there is no question that 
he made it very clear that it is not there. It is not there in the 
ninth amendment. It is not there in the 14th amendment. It is just 
not there. 

Both of you I think stated that present members of the Court, 
and former so-called conservative members of the Court, though 
they might not have applied it, say, to abortion, they found it in 
the Constitution. 

Well, I find it in the Constitution just as clear as those lights are 
shining down on you, but I draw my own line, and whether some¬ 
body agrees with that, that is up to them, and I do not force my 
views on them, but I am interested in those examples of where 
these sitting members, particularly, so-called mainstream conserv¬ 
atives, vary from Judge Bork. 

Ms. Sullivan. I would be happy to provide a few examples, if I 
might. Senator DeConcini. 

Senator DeConcini. Would you? Okay. 

Ms. Sullivan. Let’s take Justice White, an articulate, passionate 
dissenter from Roe v. Wade, the abortion case. 

Justice White says the right of privacy does not go that far. 
Abortion is not a matter of a woman in isolation. It involves the 
interest of a potential third party and that is why it is not private. 

Senator DeConcini. What about Rehnquist? 

Ms. Sullivan. Well, let’s take what Justice White has said. He 
signed Griswold, the case that Judge Bork has consistently criti¬ 
cized. 

Senator DeConcini. Sure. 

Ms. Sullivan. He wrote his own concurrence. He said I base this 
on liberty, the due-process clause of the 14th amendment, but there 
is a liberty right for married people to use contraceptives in their 
bedroom. 

He signed that. He signed the subsequent case upholding the 
right of access to contraceptives. 



3101 


Senator Leahy. He signed the which case? 

Ms. Sullivan. Justice White concurred in the judgment in Gris¬ 
wold, writing that he found married persons’ use of contraceptives 
to be a substantial part of marriage, and marriage and its intimacy 
is to be protected by the liberty clause of the 14th amendment, rea¬ 
soning very similar to Justice Harlan’s. 

Senator DeConcini. What about Justice Rehnquist. You men¬ 
tioned him. 

Ms. Sullivan. Justice Rehnquist, just to take a recent example, 
just last summer, at the end of the term, signed on to Justice 
O’Connor’s opinion for all of the Justices of the Court, that you 
could not deny—a State could not deny prisoners the right to get 
married. Why? 

Well, they may be prisoners, but marriage is one of the funda¬ 
mental civil rights of man, quoting Justice Douglas from the Skin¬ 
ner case. They all signed that opinion. They all said you cannot 
take that- 

Senator DeConcini. Based on a right of privacy, referring to the 
Skinner case? 

Ms. Sullivan. A right of privacy based in the liberty clause of 
the 14th amendment, read in the light of the ninth amendment's 
great reminder, that we did not give all our rights away to govern¬ 
ment when we formed the Constitution. We saved them. 

Senator DeConcini. So that is a clear example as to Rehnquist, 
O’Connor, and Scalia all agreeing to that. 

Ms. Sullivan. Justices Scalia and O’Connor also signed that de¬ 
cision in Turner v. Safley. 

Senator DeConcini. That is what I wanted. What case is that? 

Ms. Sullivan. Turner v. Safley, a case from 1987—the 1986 
Term. 

Senator DeConcini. Thank you. 

Ms. Sullivan. And just as to Justice Black, to go back in time 
for a moment. Of course Justice Stewart, although he initially dis¬ 
agreed with Griswold did sign on to Roe. His doubts may have been 
assuaged in the years that the Court was not going to take the 
right of privacy to endless limits—the prophecy of doom that Sena¬ 
tor Grassley read us a moment before from Justice Black. 

Justice Black himself also signed on to the right of privacy at 
least three times. He signed onto Justice Douglas r opinion in Skin¬ 
ner v. Oklahoma. 

Senator DeConcini. Skinner. And did he base that on privacy, 
too? 

Ms. Sullivan. He signed it. We do not know what he was think¬ 
ing. 

Senator DeConcini. He did not write anything- 

Ms. Sullivan. The decision clearly has both an equality and a 
privacy component. 

He signed onto the opinion of Chief Justice Warren for the Court 
in Loving v. Virginia, holding that it was not only race discrimina¬ 
tion to bar interracial marriage, but that a ban on interracial mar¬ 
riage violates the liberty, the privacy interest in being married to a 
person of your choice, not the State’s. 

When Justice Black signed those opinions, he could easily have 
written a concurrence. He could have said I am doing this only for 



3102 


a different reason. Justice Stewart did that in Loving. He said I am 
just doing this because it is race discrimination. I do not sign on to 
that little “liberty stuff” at the end. 

Justice Black did not do that. He was a man of close reading. If 
he had thought that it was thoroughly beyond the pale to sign onto 
the right of privacy, we can bet he would have written separately 
in those cases, and of course Bolling v. Sharpe, another case- 

Senator DeConcini. Well, thank you. That is helpful to me, and 
any other information you want to supply the committee will also 
be helpful to this Senator. Thank you, Mr. Chairman. 

The Chairman. Senator Specter. 

Senator Specter. Thank you, Mr. Chairman. 

I would like to get your views on a somewhat different question. 

I have heard your testimony on privacy. I have expressed my 
concerns about that. We have talked about the first amendment 
and we have talked about equal protection. 

There is another parameter, perhaps, to these confirmation hear¬ 
ings, looking at Judge Bork from a different perspective, and that 
may be that he has in fact, as Professor Kurland said, campaigned 
from podium to podium to become a Supreme Court nominee, and 
that he has a very powerful intellect and might make an enormous 
contribution to the Supreme Court, if confirmed. 

Chief Justice Burger has said, or been quoted as saying that he is 
the best-qualified nominee to the Court in 50 years. And as I go 
back over the Justices of the Court—and there are powerful intel¬ 
lects on the Court today—but it may be all the way back to Car- 
dozo, when we had a State court of appeals judge come from New 
York with the great decisions he handed down in Falsgraf and 
Buick v. McPherson, and other cases. Or it may even be all the way 
back to Holmes who had been on the Supreme Judicial Court of 
Massachusetts. 

And that Judge Bork has an enormous intellect and really great 
potential on the Court. And there is the other aspect which is not 
an irrelevancy, although perhaps we should take the nominees one 
at a time, as to what will happen to the nomination process if 
Judge Bork is not confirmed? 

What will be the alternative? We have a President who has a 
disposition to nominate a conservative, and many say that is his 
right, and there is a certain discretionary range for a presidential 
appointment, perhaps. That is up to each individual Senator to 
evaluate. 

But why not Judge Bork? I think that people would have been 
surprised in the abstract to see Chief Justice Rehnquist sign onto 
the Turner opinion, and I discussed that with Judge Bork when he 
was here a week ago Saturday. 

Be surprised to see Justice Scalia sign on to the Turner opinion 
in view of Justice Scalia’s statement about original intent, and the 
status when he came to the Court. 

And we know the great surprises of Justice Black, or Justice 
Tom Clark voting against Truman on the steel mill seizure. 

Why not Judge Bork? What about the potential advantages of 
having a man of his powerful intellect coming to the Court with 
the tradition that has been present on the Court for people follow¬ 
ing a different path than you might expect? 



3103 


Professor Richards, I notice you straining at the leash. Why don’t 
you start. 

Mr. Richards. Well, I think it is not the intellectual caliber of 
the man which troubles us. It is obviously considerable. But it is 
his attitude to law, and particularly to American constitutional 
law. 

The great judges you cited—Holmes, Cardozo—had the most pro¬ 
found respect for the American constitutional tradition. They were 
£reat legalists. Arguments according to principle were profoundly 
important to them. They shaped our culture in that kind of way. 

Judge Bork has taken a highly abstract intellectual attitude to 
what it is to interpret the American Constitution, and he has 
argued for it extremely vigorously. And his arguments, it seems to 
me, are not in the range of what you would call reasonable debate 
about the meaning of the Constitution. 

We all disagree about the proper play of text, history, political 
theory, and judicial precedent. 

Senator Specter. With all due respect, Professor Richards, who 
are you or I to say that Judge Bork s positions are unreasonable? 
You have some real legal scholars who have come forward here, 
and you have had Judge Bell; you have had Lloyd Cutler; you’ve 
had people who are well within the range of accepted legal stand¬ 
ards. 

Why the conclusion? Why should we accept your generalization 
or perhaps mine as to Judge Bork’s being beyond or your general¬ 
ization? Let’s take yours. 

Mr. Richards. Well, because of the things he seems ready to read 
out of the tradition on grounds that seem quite baseless. It seems 
to me the two things which we look for in a Supreme Court Justice 
is an understanding of the rights of the enumerated and unenu¬ 
merated in our tradition and a capacity to vindicate them by argu¬ 
ments of principle in a courageous and independent-minded way. 
That is what we admire, to hold us accountable to these great prin¬ 
ciples which the culture is about. 

Judge Bork has an extremely narrow conception of rights, both 
enumerated and unenumerated. That is clear from what we’ve 
seen in many areas. 

Senator Specter. How about Oilman v. Evans and Novak ? Isn’t 
that a very forceful illustration of Judge Bork taking a first 
amendment issue and making a very good interpretation, progres¬ 
sive interpretation as you would consider it? 

Mr. Richards. In that area, but, of course, his views on privacy 
remain extremely narrow, and it seems to me nothing is more im¬ 
portant to the American people or it would seem to me to the 
Senate than a judge’s capacity to understand, to have a rich and 
complex and vigorous conception of the rights our tradition pro¬ 
tects and a capacity to hold us accountable to principle, and there 
is real doubt about both of those things. 

Senator Specter. Well, I’d like to go on, but my time is up, and 
we do have a lot of witnesses. I bring up the Oilman case only as 
illustrative of a surprise by Judge Bork, and we talk about Turner 
as a surprise by some of the Justices who signed on. 

We have a Judge Bork in Dronenburg, and we have his court 
opinion on privacy, and I understand what it is. We have the power 



3104 


of his intellect and that is a question that I was interested in your 
comments, and I thank you for them. 

Thank you very much. 

Ms. Kay. Senator Specter, could I add just one sentence to Pro¬ 
fessor Richards’ answer on that point? 

The Chairman. Surely. 

Ms. Kay. I’d just like to say that all of us as law professors 
always have to judge our graduates on their intellectual prowess, 
and I think on that measure as you’ve said, Judge Bork is clearly 
an intellectual strength. 

But intellect alone is not sufficient to make a great jurist. There 
has to be, in the words of other witnesses who’ve appeared before 
you, judgment, wisdom and sensitivity to the concerns and needs of 
others, and on those latter scores, I believe John Frank has studied 
Judge Bork’s opinions and suggested that they showed a lack of 
sensitivity to issues affecting minority persons. 

I believe that Senator Metzenbaum said earlier with reference to 
the Cyanamid case that perhaps Judge Bork was insensitive to the 
concerns of women. I myself feel that the way he treated the Gris¬ 
wold case in these very hearings indicated his lack of sensitivity to 
issues affecting women. He failed to see the impact that case had 
on the ability of women to get access to medical advice. Doctors 
were violating the law if they prescribed contraceptives in Con¬ 
necticut during that period. 

So I would worry about those other attributes of a wise and 
humane human being. I don’t think sheer intellect should be the 
sole criterion for this position. 

The Chairman. Thank you very much. 

Senator Leahy. 

Senator Leahy. Thank you, Mr. Chairman, and I think also this 
discussion of privacy by this panel in answer to questions on both 
sides of the aisle has been extremely important. Perhaps when you 
represent as small and rural a State as I do, the sense of privacy 
becomes even more ingrained and a matter of some concern. 

In fact, I hear it all the time in Vermont. It is a question that 
has been raised to me on street corners and town meetings, every¬ 
thing else. So let me just ask a couple questions on that which may 
help in the debate. 

After all the talk about the constitutional right to privacy, about 
what the Constitution says and doesn’t say. I’d like to pose a few 
questions. Let’s assume for the moment that the Supreme Court 
were to cast aside the Griswold decision and the reasoning that 
backs up the Griswold decision. 

Would there be anything in the Constitution that would prevent 
a State from passing one of the following statutes: A statute pro¬ 
hibiting the sale of contraceptives to unmarried couples? We can go 
back to it in more detail, but at least on first impression do any of 
you see anything in the Constitution that would then prevent a 
State from passing such a statute? 

Ms. Sullivan. No. 

Ms. Kay. No. 

Senator Leahy. How about then a statute requiring the use of 
contraceptives? 

Ms. Sullivan. If Griswold were overturned? No. 



3105 


Mr. Richards. No. 

Senator Leahy. How about a statute authorizing the distribution 
of contraceptives to minor school students in order to stem the 
spread of AIDS absent Griswold ? Again, the answer is no? 

Ms. Sullivan. No. 

Senator Leahy. How about a statute requiring abortions for 
women carrying the AIDS virus? 

Ms. Sullivan. It could stand if Griswold were overturned. 

Mr. Richards. Exactly. 

Ms. Kay. Yes. 

Senator Leahy. Now, I realize it was difficult for Judge Bork to 
talk about hypothetical cases that might come up, but you’re all 
legal scholars in this area. Do you not see some of these hypotheti- 
cals that I have portrayed as possibilities of legislative action 
absent the protections laid out very clearly in Griswold ? 

Ms. Sullivan. Yes. 

Mr. Richards. Absolutely, yes. 

Senator Leahy. And, Professor Sullivan, you teach local govern¬ 
ment law as well as constitutional law, is that right? 

Ms. Sullivan. That’s right. 

Senator Leahy. One of Judge Bork’s criticisms of the constitu¬ 
tional right of privacy is that, and I think I’m using his words cor¬ 
rectly, it strikes without warning. He’s concerned that the develop¬ 
ment of the law in this area is unpredictable. 

Now, if that criticism is right, I suppose local governments may 
be put in an unfair position. They’d have to guess whether a pro¬ 
posed law relating to marriage or maybe how many people can live 
in a household might violate the constitutional right of privacy. 

So let me ask you. Does a constitutional right of privacy strike 
without warning? 

Ms. Sullivan. I think it would be probably more true to history 
to say that local moral majorities can strike without warning. The 
examples I gave before I won’t belabor. 

The right of privacy doesn’t strike without warning. It has been 
an extraordinarily limited right as expanded by the Supreme Court 
so far. 

If I might. Senator Leahy, I’d like to explain why we all an¬ 
swered no when you said if Griswold weren’t there, would there be 
something else in the Constitution that would protect our right of 
privacy. I think the reason we said that is that Griswold was an 
extraordinarily comprehensive set of opinions. 

It exhausted the constitutional terrain. It mapped out where the 
right to privacy could be found in the Constitution. It said the 
structure of the Bill of Rights which gave us limited government— 
that was Justice Douglas’ approach. Justice Harlan, Justice White 
took a different approach. They said liberty, the liberty clause of 
the 14th amendment. 

Justice Goldberg, joined by Justice Brennan and Chief Justice 
Warren said it’s liberty in the 14th amendment read in the light of 
the ninth amendment that says rights not enumerated in the Con¬ 
stitution we keep. We didn’t give them away just because we didn’t 
list them. 

Senator Leahy. But, in fact, if that is a part of it, the ninth 
amendment, those rights retained, that is what I think I find, as 



3106 


one individual, so appealing in that because there are things that I 
think that we inherently know as Americans, as individuals, things 
that really should be liberty and are no business of government, 
but we can point to everything from local governments straight 
through the federal government where those liberties are trod 
upon in statutes. 

Ms. Sullivan. I think that is fair enough to say, and I think the 
important point is to remember those opinions in Griswold were 
very eloquent, and there’s no reason to suppose some new right to 
privacy is going to come barrelling down the pike if Griswold is 
overturned. 

The Constitution is not like a new world full of new and interest¬ 
ing nooks and crannies. If it isn’t in liberty, the structure of the 
Bill of Rights and the important reservation of unenumerated 
rights in the ninth amendment, it’s not going to be found some¬ 
where else. 

So we should hold out no hope when Judge Bork says my ears 
are open. I believe his ears are open, but there is nothing more for 
him to hear. If Griswold is overturned, the right to privacy is gone. 

Mr. Richards. It’s an extremely dense set of opinions. There 
were four concurring opinions. 

Senator Leahy. My time is up, but the reason I asked the ques¬ 
tion, and I find your answers so interesting, is that Judge Bork in 
his criticism of Griswold said not that he criticized the fact or not 
that he liked a law which told married couples, in effect, whether 
they could use contraceptives or not, but rather he felt that they 
should have looked for some other thing in the Constitution, some 
other reason in the Constitution to protect them in Griswold v. 
Connecticut. But there isn’t anything else in the Constitution. 

Ms. Sullivan. If it isn’t liberty or the ninth amendment, which 
he called nothing more them an ink blot or a water blot, I don’t see 
where it would be. 

Senator Leahy. I agree. 

Senator Thurmond, who is next on your side? 

Senator Thurmond. Senator Humphrey. 

Senator Humphrey. Thank you, Mr. Chairman. May I just begin 
with the observation that the arguments the Senator from Ver¬ 
mont raised suggesting that legislatures are free to ban the sale of 
contraceptives or to require the use of contraceptives or requiring 
the distribution of contraceptives to school children is a red her¬ 
ring. There isn't a legislature in the country that would do any of 
those things or which would require a woman who has the AIDS 
virus to have an abortion. 

No legislature in this country would do that, and to raise those 
arguments is to resort to red herrings. The democratic process 
works usually and for the reasons of wishing to be reelected, legis¬ 
lators are not going to enact that kind of law. 

Now, you are here obviously in opposition to Judge Bork’s confir¬ 
mation so it seems to me we have a right and indeed a responsibil¬ 
ity to try to get some idea of where you are coming from in assess¬ 
ing and weighing your testimony. 

Professor Richards, in reading your writings I come to the con¬ 
clusion that you have a very broad concept of the privacy right, 
one which is so broad, indeed, that according to your writings, you 



3107 


believe that legislators have no jurisdiction passing a statute which 
makes prostitution unlawful. 

You said in your piece, Sex, Drugs, Death and the Law, pub¬ 
lished in 1982, that, quote, “there are no good moral arguments for 
criminalizing consensual adult commercial sex and its punishment 
is a violation of the rights of the individual. 

So am I correct, as I read this, in inferring that you believe that 
legislature have no business passing statutes making prostitution 
unlawful? 

Mr. Richards. Well, that is my view. Senator. 

Senator Humphrey. That is your view. 

Mr. Richards. But I do draw a distinction in my work between 
the proper application of constitutional privacy which I limit and 
general arguments about decr iminaliz ation. Those latter argu¬ 
ments are really directed only at policy makers. I think I say that I 
do not believe constitutional privacy applies in this arena because 
of the special problems with commercial sex. 

Therefore, I think a distinction should be drawn certainly in my 
own thinking between the proper scope of constitutional privacy 
which I think is a much more limited right because it’s judicially 
enforced and complicated questions like the regulation of commer¬ 
cial sex where I believe there will always be a need for continuing 
regulation of some sort in that arena. 

I would never advocate and have never advocated the use of pri¬ 
vacy as a concept in that arena. It seems to me inappropriate and 
unwise. The argument was solely directed at policy makers, urging 
them to consider the European and British pattern which regulates 
commercial sex and does not prohibit it. 

Senator Humphrey. Well, we go by the American pattern which 
gives legislatures the right to pass a statute which is consistent 
with the Constitution. Are you saying that is inconsistent with the 
Constitution? 

Mr. Richards. No, I’m not. Senator. I concede that in this arena. 
I do not, and I never have made or- 

Senator Humphrey. Legislatures may outlaw prostitution con¬ 
sistent with the Constitution including the privacy rights? 

Mr. Richards. That is my view, but I also argue at some length 
it is unwise. 

Senator Humphrey. You feel it is unwise to make prostitution 
unlawful. Well, that helps us in understanding where you’re 
coming from. Let’s turn to drugs. 

You said in one of your pieces, “The right to use many drugs cur¬ 
rently criminalized is one of the rights of the person which the 
State may not transgress.” Do you feel that legislatures may not 
constitutionally pass laws making the use of drugs unlawful? 

Mr. Richards. No, I do not, Senator. 

Senator Humphrey. Well, that’s what your article says. 

Mr. Richards. Again, I would urge the same sort of distinction. I 
would have a very narrow conception of privacy in this arena and 
in general. 

Senator Humphrey. Then on what grounds do you oppose crim¬ 
inalization? 

Mr. Richards. On grounds that it is ineffective in various sorts of 
ways. 



3108 


Senator Humphrey. I beg your pardon? 

Mr. Richards. It’s ineffective. A prohibitory policy is ineffective. 
It doesn’t handle the problem. There are alternative regulatory 
ways. 

Senator Humphrey. You do not favor a statute which makes un¬ 
lawful the use of illicit drugs? 

Mr. Richards. That’s not true, Senator. I believe in regulation in 
the- 

Senator Humphrey. Statute. I’m taking about statute, not regu¬ 
lation. 

Mr. Richards. I do believe such statutes are, in general unwise, 
with the exception of, of course, the more intractable hard drugs 
where I do think- 

Senator Humphrey. You regard such statutes including the 
many, probably numbering in the hundreds if not thousands, as 
unwise? 

Mr. Richards. Yes, I do, Senator. If I might amplify the point, 
Senator. My own views on the scope either of privacy or it seems to 
me the scope of decriminalization are, of course, not the issue in 
these hearings, and I would never oppose someone for not sharing 
my views. 

Senator Humphrey. Well, the issue seems to be the issue of pri¬ 
vacy. That is the issue which the opponents have tried to make. 
Are you saying that you agree with me that legislatures have the 
right to proscribe prostitution, use of illicit drugs consistent with 
the privacy rights of an individual? 

Mr. Richards. As a constitutional matter, yes, I do. 

Senator Humphrey. I would think that you agreed with Judge 
Bork in this respect. 

Mr. Richards. On that point. Senator, but not on his general 
attack on privacy as a principle in our law. I mean the difference— 
I mean my disagreements- 

Senator Humphrey. It's a distinction without a difference. The 
Judge says that there is not this vast unencumbered right to priva¬ 
cy. Maybe, by the way, that’s unfortunate omission in our Constitu¬ 
tion. Maybe we ought to amend the Constitution. 

But you can’t beat a guy to a bloody pulp because he refuses to 
find something which is clearly not there. 

Mr. Richards. Well, that’s what is in dispute, Senator. I believe 
the right of privacy narrowly cabined as it has been by the Su¬ 
preme Court clearly is in the American tradition for reasons I 
pointed out in my opening remarks, and the issues over the scope 
of the right are, of course, intractable and difficult as we have 
pointed out several times. 

But the issue of the right being there is, it seems to me, quite 
clear as a matter of the text and history of this country, and I find 
Judge Bork’s views frightening in that he manages to excise this 
tradition for arguments which seem to me very badly defended. 

Senator Humphrey. I don’t agree with that but unfortunately my 
time has expired. 

The Chairman. The Senator from Alabama. Senator Heflin. 

Senator Heflin. I’m sorry that I didn’t hear all of your testimo¬ 
ny. I have had to attend a committee meeting on the Iran-Contra 



3109 


arms sale matter so I hope 1 don’t ask you something that’s repeti¬ 
tious. 

This being the year of the bicentennial, we all know that the 
Constitution was originally adopted without a Bill of Rights, and 
then by amendments, the Bill of Rights were added, largely as a 
result of the ratification process for the discussions in various 
forums that the rights that were implied should be put in print, 
and later, of course, we see the adoption of the Bill of Rights 
amendments. 

Now, as I remember from the concept of the arguments, Hamil¬ 
ton and others felt that the federal government was a government 
of delegated powers; therefore, it was limited in its authority and, 
therefore, unless something was specifically delegate to the federal 
government, then the people, in effect, reserved that right. 

Then we see the adoption of the ten amendments, and the ninth 
amendment comes along primarily as a result of Madison’s desire 
to say that the listing of the various rights in the Bill of Rights is 
not to be all-inclusive, and therefore, they reserved to the people 
certain other inherent rights that they have. 

Now perhaps, from your background in studying rights in re¬ 
gards to this, would you give us somewhat of a history of the devel¬ 
opment of the ninth amendment. Justice Goldberg does somewhat 
in the Griswold case, but not sufficiently, I think, from the view¬ 
point of people to understand exactly the status as of that time. 
Also the debates are pretty limited on the intent relative to the 
adoption of the ninth amendment in Congress. Could you give us 
any information that might help throw light on the purpose of the 
ninth amendment and what was in mind of the members of Con¬ 
gress as they drafted it? 

Mr. Richards. Senator, I addressed this issue in my statement. If 
I just might make a few summary remarks about the history that I 
explicate there. It is quite clear, the Founders, at least the dele¬ 
gates to the 1787 convention, did not believe a bill of rights was 
necessary. It arose very late in the convention and the view taken 
by the leading Founders, most notably James Madison of Virginia, 
James Wilson of Pennsylvania, and Alexander Hamilton of New 
York—they make these arguments at ratifying debates and in Fed¬ 
eralist Papers, in the case of Hamilton—is that you do not need a 
bill of rights. 

All rights are reserved from the people. This is a conception of 
the people retaining all inalienable rights find therefore, the very 
idea that the State could trench upon inalienable human rights is 
foreign to our whole conception of legitimacy; namely, rights are 
always reserved from the people and they fear, on the ground the 
idea of having a bill of rights. They make this point in their debate 
with the anti-Federalists. 

They do not want a bill of rights because it will be taken to be 
exclusive and indeed I cite Iredell’s remarkable speech in the 
North Carolina ratifying convention where he actually says we do 
not want a bill of rights because someone later on—and I say it is 
predictive of Judge Bork—will look back and say rights are only as 
defined in 1787, which will corrupt and degrade our whole tradi¬ 
tion. They want rights fully protected, as indeed, they are viewed 
in later contemporary circumstances. 



3110 


Therefore, the suggestion is we do not need a bill of rights be¬ 
cause it will have this negative inference. Nonetheless, as you 
know, the leading States, Massachusetts, Virginia and New York, 
would not ratify without a strong assurance that a bill of rights 
would come. The anti-Federalists really had persuaded the nation 
that a bill of rights was needed. Americans were convinced of this 
and the argument is made you need rights put up in the document 
so that Americans will always remember what inalienable rights 
are. 

This is a precious heritage and Americans have to be constantly 
reminded of this heritage to hold them accountable to these tradi¬ 
tions. So, Madison realizes, when he is elected to the first Congress, 
that he must propose a bill of rights. It was a promise he had made 
in Virginia and he knew New York and Massachusetts required it, 
and so the Bill of Rights is drafted. But the ninth amendment is 
crucially required to rebut the inference, the malign inference, that 
all rights are only enumerated in the Bill of Rights and it, indeed, 
was really part of the compact between the Federalists and the 
anti-Federalists on the basis of which they would finally come to 
agreement. We would have a Bill of Rights, but there had to be an 
express guarantee that unenumerated rights of the person would 
be fully protected. 

Therefore, the ninth amendment is at the absolute core of, it 
seems to me, both the Constitution and the 1791 debates and this 
idea of unenumerated rights is there as well—its core, in the 
Founders thinking, and that gives, I think, a kind of sense of the 
historic depth in the minds of the Founders, the moral depth of 
this tradition which they meant to protect by the ninth amend¬ 
ment. It cannot be said to have been inessential to their thinking. 
It was quite at the core, it seems to me, of what they thought you 
could reasonably expect from the Bill of Rights and their worries 
about the way in which a tradition of enumerated rights would be 
abused. 

The Chairman. Thank you. Senator Hatch and then we will go 
to Elliot Richardson. 

Senator Hatch. I think I will be happy to waive my questions. 

The Chairman. Thank you all very much for your time. 

Ms. Sullivan. Mr. Chairman, I take it Professor Kay’s and my 
written statements will also be placed in the record along with Pro¬ 
fessor Richards. 

The Chairman. Yes, your written statements will be placed in 
the record. 

Ms. Kay. Chairman Biden, if I might take just one moment to 
correct the record? Secretary Carla HUls, in her testimony, suggest¬ 
ed that Judge Bork’s thinking on the question of equality affecting 
women was close to mine and she cited me by name in her testimo¬ 
ny. Other scholars that she cited by name have written letters to 
the committee disassociating themselves from that interpretation 
of their work. I did not write because I knew I would be here today 
and I want to assure this committee that I do not believe that 
Judge Bork is relying on my analysis for his positions about the 
equality of women. 

The Chairman. Thank you very much. We will take a 5-minute 
break—and I mean 5 minutes—so at 5 minutes of 12, we will start 



3111 


with former Attorney General and Secretary, a distinguished 
American, Elliot Richardson. 

[Recess.] 

The Chairman. The hearing will come to order. It is a great 
pleasure and an honor for this committee to have, as our next wit¬ 
ness, a former Attorney General, one of the most distinguished 
Cabinet members we have ever had. I will not read his entire back¬ 
ground except to say that among many other things, he will go 
down in American history as one of the men of great integrity and 
he is here to testify and, as I indicated earlier, we have been keep¬ 
ing witnesses to a 5-minute rule, but I think we should, quite 
frankly, make an exception in this case. Secretary General, you 
take as much time as you would like in your statement, but we will 
limit Senators to 5 minutes in their questioning. Welcome and 
please begin. 



3112 


STATEMENT OF HON. ELLIOT L. RICHARDSON 

Mr. Richardson. Thank you very much, Mr. Chairman. 

The Chairman. Excuse me. I should swear you in. I beg your 
pardon. Do you swear the testimony you are about to give is the 
whole truth and nothing but the truth, so help you God? 

Mr. Richardson. I do. 

The Chairman. Thank you very much. Please begin. 

Mr. Richardson. Thank you, Mr. Chairman. I very much appre¬ 
ciate this opportunity to testify on the nomination of Judge Robert 
H. Bork to the Supreme Court of the United States. 

When I was first approached about testifying at this hearing, I 
was uncertain as to how far I would feel able to go in supporting 
Judge Bork’s confirmation. He and I had served together in the De¬ 
partment of Justice from June to October, 1973. Because of that 
common experience, I have never had any hesitancy in attesting to 
his integrity, courage and uncommon intellectual honesty. He dem¬ 
onstrated these qualities in his handling of the charges against 
Spiro T. Agnew and his role in the crisis brought on by President 
Nixon’s determination to get rid of Archibald Cox. 

As to the Agnew affair, I would be glad to respond to the com¬ 
mittee’s questions. As to the Cox firing, I would like to summarize 
the essential facts as I saw them. 

Robert Bork took no part in the negotiations leading to President 
Nixon’s order to dismiss Mr. Cox. By the time Mr. Bork came into 
the picture as Acting Attorney General, after my resignation, and 
after the resignation of my Deputy, William D. Ruckelshaus, those 
negotiations and my meetings with the President and General 
Haig on the afternoon of October 20, 1973, had convinced me 
beyond any doubt whatsoever that the President was bound and de¬ 
termined to accomplish Mr. Cox’s dismissal by one means or an¬ 
other. The refusal by Mr. Bork to carry out the President’s order, 
or any delay on his part in doing so, would not have thwarted the 
President’s determination. This was Mr. Bork’s understanding. It 
was also Mr. Ruckelshaus’ and my understanding when Mr. Bork 
elected to carry out the President’s order. 

There was no doubt, I should add, no doubt on my part that the 
President had the legal authority to order Mr. Cox’s dismissal him¬ 
self. I had previously sought and received a legal opinion to this 
effect. No one has suggested, moreover, that the terms of Mr. Cox’s 
charter of independence, although published in the Federal Regis¬ 
ter constituted a departmental regulation having the force of law. 
If anyone can be blamed for failing to recognize a technical defect 
in the execution of the President’s order, resulting from the fact 
that this regulation was not formally rescinded on October 20,1 de¬ 
serve my own share of that blame. 

My decision to resign rather than fire Mr. Cox was compelled by 
my personal commitment to this committee. Mr. Bork was not a 



3113 


party to any such commitment. It did not occur to me, in any case, 
that my commitment should be regarded as binding on the Justice 
Department generally or on anyone what might succeed me as At¬ 
torney General. 

As Acting Attorney General, Robert Bork was prepared to carry 
out the President’s order, but he was concerned that doing so 
would expose him to so much criticisms that his usefulness would 
be impaired. Bill Ruckelshaus and I told him that we did not view 
this as a sufficient reason for precipitating what could well become 
a chain reaction. The Department would be facing tremendous 
pressure and would need strong leadership. It was also essential to 
maintain the continuity of the Watergate investigation. Mr. Bork 
yielded to these arguments and agreed to stay on. 

One further point needs emphasis. I did not regard the Presi¬ 
dent’s order to fire Mr. Cox as part of an effort to cover up Presi¬ 
dential wrongdoing. On October 20,1 believed it could be accounted 
for without attributing bad faith to the President. I thought that 
the so-called ’’Stennis compromise," although rejected by Mr. Cox, 
had been put forward in good faith. It was not until many months 
later that I came to the conclusion that the President’s order was 
part of an effort to derail the investigation. 

Mr. Bork's actions in the aftermath of the Cox dismissal contrib¬ 
uted to the continuation and ultimate success of the Watergate in¬ 
vestigation. He took imm ediate steps to keep the Watergate Special 
Prosecution Force together and insisted that it retain responsibility 
for the investigation. 

So much, Mr. Chairman, for an issue as to which I have from the 
outset been happy to do what I could to assure that Judge Bork’s 
role was fully understood and adequately appreciated. The uncer¬ 
tainty to which I earlier referred stems from utterances that made 
me wonder whether his views reflected the requisite balance be¬ 
tween the two most basic considerations that constitutional adjudi¬ 
cation is required to reconcile: on the one hand, due regard for con¬ 
tinuity and stability and, on the other, openness toward the matur¬ 
ing values of a changing society. 

My uncertainty has now been dispelled by the carefully consid¬ 
ered testimony that Judge Bork has given to this committee. 
Though he may not assign the same weight to these considerations 
that I would give them, I regard his valuation of them as eminent¬ 
ly reasonable. I am also satisfied that to portray him as bent on 
enshrining his every past utterance in some future majority opin¬ 
ion is worse than a caricature—it is a distortion. 

In my judgment, moreover, the clarification of his views that has 
now emerged is entitled to be taken at face value. To treat it other¬ 
wise would be both insulting and implausible. Insulting because no 
foundation whatsoever has been laid for impugning his fidelity to 
the truth. Implausible for two reasons: first because it is natural 
that a sometime professor, now face to face with awesome responsi¬ 
bility, would reconsider earlier positions; second, because it is to be 
expected that a man of his formidable intellectual capacity would 
continue to think and learn and revise his opinions accordingly. 
Indeed, I would think less of him if he had not, upon mature reflec¬ 
tion, modified many of his views. 



3114 


As elaborated in his testimony, Judge Bork’s concept of the judi¬ 
cial function has much in common with that of the two great 
judges for whom I served as a law clerk: Learned Hand and Felix 
Frankfurter. Both acknowledged Professor James Bradley Thayer 
of the Harvard Law School, who called attention to the conse¬ 
quences of excessive reliance for the protection of liberty on an un¬ 
elected body appointed for life, as the most important influence on 
the shaping of their own judicial philosophies. Judge Hand reflect¬ 
ed that influence in a famous address delivered in 1942 on the 
250th anniversary of the founding of the Supreme Judicial Court, of 
Massachusetts. 

Speaking to the essentiality of judicial independence, he said: 
“But the price of this immunity—that is, the immunity conferred 
by independence—I insist, is that judges should not have the last 
word in those basic conflicts of right and wrong between whose 
endless jar justice resides. You may ask what then will become of 
the fundamental principles of equity and fair play which our con¬ 
stitutions enshrine; and whether I seriously believe that unsupport¬ 
ed they will serve merely as counsels of moderation. I do not think 
that anyone can say what will be left of those principles; I do not 
know whether they will serve only as counsels; but this much I 
think I do know—that a society so riven that the spirit of modera¬ 
tion is gone, no court can save; that a society where that spirit 
flourishes, no court need save; that in a society which evades its 
responsibility by thrusting upon the courts the nurture of that 
spirit, that spirit in the end will perish.” 

Judge Hand was the most profoundly thoughtful man I have 
ever known. So universally was he regarded as the greatest Ameri¬ 
can judge of his time that the fact he was never named to the Su¬ 
preme Court became the most often-cited example of the vagaries 
of chance that determine such choices. How would he be viewed 
today? In his Holmes Lectures, delivered at Harvard in 1958, he 
pressed the above-quoted conception of judicial self-restraint to the 
point of questioning whether it had ever been wise for courts to 
invoke the Bill of Rights as the basis for invalidating legislation. 
Judge Bork, even in his most professorial vein, has never gone that 
far; indeed, anywhere near that far. My point is simply that the 
restraint appropriate to constitutional adjudication is an issue in¬ 
herently subject to widely differing views that will continue to be 
debated as long as courts are vested with the power of judicial 
review. 

If I had the privilege of serving as one of Robert Bork’s col¬ 
leagues on the Court, I am sure we would often disagree. As I read 
the history of the Constitution, the language of the ninth amend¬ 
ment, the framers deliberately left open the question of what 
rights not mentioned in any constitutional language are nonethe¬ 
less protected. It does not follow, however, that courts are left at 
large to define those rights. Judge Bork’s answer to this question, 
as he has expounded it to you, is at least as much entitled to repre¬ 
sentation on the Court as my own. 

Nor do I think it appropriate for Senators to approach their re¬ 
sponsibility in this matter as if they were being asked to advise 
and consent to the nominations, not only of Robert H. Bork him¬ 
self, but of two clones of Robert H. Bork. Only one name is before 



3115 


you. Judge Bork, to be sure, is a man of strong intellect, but he will 
not be among shrinking violets. Whenever his arguments command 
a majority, it will be because four other Justices agree with him. 
When his arguments do not convince four others, the need on their 
part to address those arguments will make it more likely that the 
prevailing opinion is cogently reasoned and persuasively expressed. 

Briefly stated, Mr. Chairman, these are the reasons why I believe 
that Judge Bork should be confirmed. I will be happy to respond to 
questions. 

[The statement of Hon. Elliot L. Richardson follows:] 



3116 


Statement 

by 

Elliot L. Richardson 

on the Nomination of Judge Robert H. Bork 
to the Supreme Court of the United States 


Thank you, Mr. Chairman, for this opportunity to 
testify on the nomination of Judge Robert H. Bork to the 
Supreme Court of the United States. 

When I was first approached about testifying at this 
hearing, I was uncertain as to how far I would feel able to go 
in supporting Judge Bork's confirmation. He and I served 
together in the Department of Justice from June to October, 
1973. Because of that common experience I have never had any 
hesitancy in attesting to his integrity, courage, and 
uncommon intellectual honesty. He demonstrated these 
qualities in his handling of the chargee againet Spiro T. 

Agnew and his role in the crisis brought on by President 
Nixon's determination to get rid of Archibald Cox. 

As to the Agnew affair, I would be glad to respond to 
the Committee’s questions. As to the Cox firing, 1 would like 
to summarize the essential facts as I saw them. 

Robert Bork took no part in the negotiations leading to 
President Nixon’s order to dismiss Mr. Cox. By the time Mr. 
Bork c£me into the picture as Acting Attorney General after my 
resignation and that of my Deputy, William D. Ruckelehaus, 
those negotiations and my meetings with the President and 
General Haig on the afternoon of October 20, 1973 had 
convinced me that the President was determined to accomplish 
Mr. Cox's dismissal by one means or another. A refusal by 
Robert Bork to carry out the President's order, or his delay 
in doing so, would not have thwarted the President's decision. 
This was Mr. Bork's understanding when he elected to carry out 
the President's order. 

There was no doubt on my part that the Preeident had 
the legal authority to order Mr. Cox's dismissal. I had 
previously sought and received a legal opinion to this effect. 
No one had suggested, moreover, that the terms of Mr. Cox's 



3117 


charter of independence, although published in the Federal 
Register, constituted a departmental regulation having the 
force of law. If anyone can be blamed for falling to 
recognize a technical defect in the execution of the 
President's order resulting from the fact that this 
"regulation" was not formally rescinded on October 20, I 
deserve my own share of that blame. 

My decision to resign rather than fire Mr. Cox was 
compelled by my personal commitment to this Committee. Mr. 
Bork was not a party to any such commitment. It did not occur 
to me, in any case, that my commitment should be regarded as 
binding on the Justice Department generally or on anyone who 
might succeed me as Attorney General. 

As Acting Attorney General, Robert Bork was prepared 
to carry out the President's order, but he was concerned that 
doing so would expose him to so much criticism that his 
usefulness would be impaired. Bill Ruckelshaus and I told him 
that we did not view this as sufficient reason for 
precipitating what could well become a chain reaction. The 
Department would be facing tremendous pressure and would need 
atrong leadership. It was also essential to maintain the 
continuity of the Watergate investigation. Mr. Bork yielded 
to these arguments and agreed to stay on. 

One further point needs emphasis. I did not regard 
the President's order to fire Mr. Cox as part of an effort to 
cover up Presidential wrongdoing. On October 20 1 believed it 
could be accounted for without attributing bad faith to the 
President. I thought that the so-called "Stennis compromise," 
although rejected by Mr. Cox, had been put forward in good 
faith. It was not until many months later that I came to the 
conclusion that the President's order was part of an effort to 
derail the investigation. 

Robert Bork's actions in the aftermath of the Cox 
dismissal contributed to the continuation and ultimate success 
of the Watergate investigation. He took immediate steps to 
keep the Watergate Special Prosecution Foroe together and 
insisted that it retain responsibility for the investigation. 



3118 


So much for an issue as to which I have from the 
outset been happy to do what I could to assure that Judge 
Bork's role was fully understood and adequately appreciated. 
The uncertainty to which I earlier referred stemmed from 
utterances that made me wonder whether his views reflected the 
requisite balance between the two most basic considerations 
that constitutional adjudication is required to reconcile: on 
the one hand, due regard for continuity and stability and, on 
the other, openness toward the maturing values of a changing 
society. 

My uncertainty has now been dispelled by the 
carefully considered testimony that Judge Bork has given to 
this Committee. Though he may not assign the same weight to 
these considerations that I would give them, I regard his 
valuation of them as eminently reasonable. I am also 
satisfied that to portray him as bent on enshrining his every 
past utterance in some future majority opinion is worse than a 
caricature -- it is a distortion. 

In my judgment, moreover, the clarification of his 
views that has now emerged is entitled to-be taken at face 
value. To treat it otherwise would be both insulting and 
implausible. Insulting because no foundation whatsoever has 
been laid for impugning his fidelity to the truth. 

Implausible for two reasons: first because it is natural that 
a sometime professor now face to face with awesome 
responsibility would reconsider earlier positions; second, 
because it is to be expected that a man of his formidable 
intellectual capacity would continue to think and learn and 
revise hie opinions accordingly. Indeed, I would think less 
of him if he had not, upon mature reflection, modified many 
his views. 

As elaborated in his testimony. Judge Bork’s concept 
of the judicial function has much in common with that of the 
two great judges for whom I served as a law clerk: Learned 



3119 


Hand and Felix Frankfurter. Both acknowledged Professor James 
Bradley Thayer of the Harvard Law School, who called attention 
to the consequences of excessive reliance for the protection 
of liberty on an unelected body appointed for life, as the 
most important influence on the shaping of their own judicial 
philosophies. Judge Hand reflected that influence in a famous 
address delivered in 1942 on the 250th anniversary of the 
founding of the Supreme Judicial Court of Massachusetts. 
Speaking to the essentiality of judicial independence, he 
said: 

But the price of this immunity, I insist, is that 
[judgesl should not have the last word in those 
basic conflicts of "right and wrong — between 
whose endless jar justice resides." You may ask 
what then will become of the fundamental principles 
of equity and fair play which our constitutions 
enshrine; and whether I seriously believe that 
unsupported they will serve merely as counsels of 
moderation. I do not think that anyone can say 
what will be left of those principles; I do not 
know whether they will serve only as counsels; but 
this much I think I do know — that a society so 
riven that the spirit of moderation ifl gone, no 
court can save; that a society where that spirit 
flourishes, no court need save; that in a society 
which evades its responsibility by thrusting upon 
the courts the nurture of that spirit, that spirit 
in the end will perieh. 

Judge Hsnd was the most profoundly thoughtful man I 
have ever known. So universally was he regarded as the 
greatest American judge of his time that the fact he was never 
named to the Supreme Court became the most often-cited example 
of the vagarleB of chance that determine such choices. How 
would he be viewed today? In his Holmes Lectures he pressed 
the above-quoted conception of judicial self-restraint to the 
point of questioning whether it had ever been wise for courts 
to invoke the Bill of Rights as the basis for invalidating 
legislation. Judge Bork, even in his most professorial vein, 
has never gone that far. My point is simply that the 
restraint appropriate to constitutional adjudication is an 
issue inherently subject to widely differing views that will 
continue to be debated as long as courts are vested with the 
power of judicial review. 

If I had the privilege of serving as one of Robert 
Bork's colleagues on the Court, I am sure we would often 



3120 


disagree. As I read the history of the Constitution and the 
language of the Ninth Amendment, the framers deliberately left 
open the question of what rights not mentioned in any 
constitutional language are nonetheless protected. It does 
not follow, however, that courts are left at large to define 
those rights. Judge Bork’a answer to this question, as he has 
expounded it to you, is at least as much entitled to 
representation on the Court as my own. Nor do I think it 
appropriate for Senators to approach their^responsibility in 
this matter as if they were being asked to advise and consent 
to the nominations not only of Robert H, Bork himself but of 
two clones of Robert H. Bork. Only one name is before you. 
Judge Bork, to be sure, is a man of strong Intellect, but he 
will not be among shrinking violets. Whenever his arguments 
command a majority it will be because four other Justices 
agree with him; when his arguments do not convince four 
others, the need to address them will make it more likely that 
the prevailing opinion is cogently reasoned and persuasively 
expressed. 

Briefly stated, Mr. Chairman, these are the reasons 
why I believe that Judge Bork should be confirmed. I will be 
happy to respond to questions. 



3121 


The Chairman. Thank you very much, General, for an articulate 
and concise statement of support. I yield to the Senator from South 
Carolina. 

Senator Thurmond. Thank you, Mr. Chairman. Mr. Attorney 
General, we are glad to have you here. I just have two questions I 
would like to ask you. There has been a lot said here, of course, 
about Judge Bork firing Mr. Cox. I want to ask you one question on 
that. Do you think Judge Bork acted in the best sense of the De¬ 
partment of Justice and the country when he fired Mr. Cox? 

Mr. Richardson. Yes, I do, Senator Thurmond. 

Senator Thurmond. The other question I would like to ask you is 
do you feel that Judge Bork possesses the qualifications to make an 
outstanding Supreme Court Justice of the United States? By that I 
mean, the qualifications that the American Bar Association uses, 
integrity, judicial temperament, and professional competency, as 
well as courage and dedication. Do you feel he possesses those 
qualities to make an outstanding Supreme Court Justice and do 
you know of any reason why the Senate should not confirm him? 

Mr. Richardson. I have no hesitancy whatsoever, Senator Thur¬ 
mond, in saying that I believe that he does possess, in an outstand¬ 
ing degree, all the qualities you just enumerated. As I said in my 
prepared statement, before I had had the opportunity to consider 
the testimony given to this committee by Judge Bork, I had some 

J uestion as to whether some of his views reflected a sufficient 
egree of openness toward the evolving values of a changing socie¬ 
ty and whether he would give a sufficient degree of weight to the 
precedents of the Supreme Court. As I said, his testimony has dis¬ 
pelled anv questions 1 had on those points so that I am now, as I 
have said, unreservedly convinced that he would make an out¬ 
standing Supreme Court Justice, not only with respect to all the 
qualities of character that you touched on, but with respect to his 
contribution to the adjudication of the inherently difficult issues 
that will always divide a body of nine Justices. 

Senator Thurmond. Do you know of anything against him that 
would prevent him from making a good Supreme Court Justice? 

Mr. Richardson. No. 

Senator Thurmond. That is all. Thank you, Mr. Chairman. 

The Chairman. Thank you. The Senator from Massachusetts, 
Senator Kennedy. 

Senator Kennedy. Thank you, Mr. Chairman. Mr. Richardson, I 
join in extending a warm welcome to you. We are extremely 
pleased to have you here today. You have served our country with 
honor and distinction in a broad variety of positions. But I think 
most Americans probably remember and admire you most for your 
actions as Attorney General during 1973, when you demonstrated 
your commitment to the rule of law by resigning rather than obey¬ 
ing President Nixon’s order to fire Archibald Cox as the Watergate 
Special Prosecutor. 

You later wrote in your book, “The Creative Balance,” that 
President Nixon’s entire effort at that time was directed at getting 
rid of Archibald Cox as Special Prosecutor so that he would not 
obtain the incriminating White House tapes. You wrote and I 
quote, “I was finally forced to conclude that from the beginning of 
the week, the name of the game had been get rid of Cox, get rid of 



3122 


him by resignation if possible, but get rid of him.” We all remem¬ 
ber the courageous action you took, Mr. Richardson, in standing up 
for the rule of law. 

Judge Bork chose a different and a much more controversial 
course at one of the most critical moments of our history. Judge 
Bork obeyed the order of a corrupt President and denied the rule of 
law. A federal judge later ruled that Judge Bork had acted illegal¬ 
ly. Judge Bork has claimed that the regulations were only a techni¬ 
cality and that everything turned out all right. But you and I lived 
through those days together, Mr. Richardson, 7 days in October of 
3973, and it was by no means clear to either of us that everything 
would turn out all right. 

The firestorm of public criticism had a great deal to do with the 
fact that everything did turn out all right. So did your courageous 
actions, Mr. Richardson. We cannot say the same about Judge 
Bork’s actions and that is one of the reasons why this nomination 
is so controversial. 

Mr. Richardson. May I respond, Mr. Chairman? 

The Chairman. Please. 

Mr. Richardson. I very much appreciate Senator Kennedy’s allu¬ 
sions to and quotations from my book. I am sorry it is out of print. 
But his quotation was also somewhat selective. He alluded to those 
7 days in October and to the aftermath of the so-called “Saturday 
Night Massacre” and to the fact that it did turn out all right. It 
turned out all right, Senator Kennedy, in significant part because 
of the role played by Robert H. Bork. One of the concerns that Bill 
Ruckelshaus and I had in urging him to stay on was that there 
would be a situation fraught with enormous tension, that anyone 
in the position of Acting Attorney General would be subject to 
great pressure and that it was vital that the continuity of the Wa¬ 
tergate investigation and the integrity of the Watergate Special 
Prosecution Force, be maintained. 

Judge Bork, from the very moment that he became Acting Attor¬ 
ney General, and after the firing of Archibald Cox, fulfilled that 
commitment to the integrity of the Special Watergate Prosecution 
Force. As testimony before this committee has brought out, as 
early as Monday, he was already seeking advice from the American 
Bar Association as to individuals who might capably serve as a suc¬ 
cessor to Archibald Cox. I think, as I also acknowledge in that 
book, a few pages further on, I think the nation owes a substantial 
debt to Robert Bork for his services in that situation. 

Senator Kennedy. There have been some that suggested that he 
could have fired Archibald Cox and then after the re-establishment 
of a Special Prosecutor—he could have resigned and the continuity 
would have continued in terms of the power of appointment that 
exists within the President and that would have been a more satis¬ 
factory way of proceeding. 

Mr. Richardson. With respect, Senator, it seems to me a silly 
suggestion. Why would the best possible man to be Acting Attorney 
General, quit after having gone through with the most distasteful 
and painful part of the job? He had already done that. His original 
idea, as I have testified this morning and as my book also notes, 
was to carry out the firing and then resign. He was concerned that, 
as he put it, he would be viewed as an apparatchik, that the oppro- 



3123 


brium attached to that term would impair his usefulness as Acting 
Attorney General. Bill Ruckelshaus and I talked him out of that. 
We said that is not a sufficient reason for you to resign, and we 
eventually convinced him of this with the beneficial contribution to 
the public interest that I have just mentioned. 

I might add, too, Senator, that I touched on this business about 
the illegality of the firing on page two of my prepared statement. 
Again with respect to Judge Gesell, his version of the “regulation” 
has always seemed to me excessively legalistic. It did not occur to 
anyone on Saturday, October 20, 1973, that the mere fact that my 
agreement with Archibald Cox had been published in the Federal 
Register, constituted a legal barrier to Mr. Bork’s action. I do not 
believe it did. I already had had, as I said, an opinion of the Office 
of Legal Counsel of the Department of Justice, to the effect that 
the President could have fired Cox himself at any time. He was 
certainly entitled to get it done. 

The problem I had and the problem Bill Ruckelshaus had was 
the problem arising out of the fact that the terms of Cox’s charter 
had been negotiated with Cox and with this committee, as you 
would well remember, but the question of whether the order should 
have been rescinded or when it was rescinded, seems to me, very 
inconsequential in the light of the circumstances as a whole. 

Senator Kennedy. Well, could I just finish my thought? 

The Chairman. Yes. 

Senator Kennedy. I remember, during the course of those hear¬ 
ings in establishing the Special Prosecutor and the issuing of the 
various regulations, the exchange that you had with Senator Ma¬ 
thias, that I believe was referred to actually in Judge Gesell’s 
ruling. “Senator Mathias. That brings me to one further question 
on the guidelines. Had you considered the mechanism by which 
you finally published them? They could be published in the Federal 
Register in the manner in which the Department regulations are 
published, could they not? 

“Mr. Richardson, that is what I expected to do, because to a 
degree, they supersede the regulations that provide for delegation, 
for example, to the Assistant Attorney General for the Criminal 
Division in certain respects and so therefore, the most effective 
way of making sure that they do, as a matter of law, supercede the 
existing regulations to give them the same legal status through 
publication in the Federal Register.” I think that that is, at least it 
is my understanding, the reason why Judge Gesell believed that 
they did have the power of the rule of law in his decision and it 
was later upheld in the Nixon case. 

Mr. Richardson. Well, I think the operative words there. Sena¬ 
tor, are the same status. Arrangements involving the delegation of 
functions to individuals within the executive department, where 
those functions are not prescribed or limited by statute, is a matter 
that the head of a department can address at any time. Certainly 
that has always been my assumption. 

Senator Kennedy. So the agreement was really just between you 
and the committee? 

Mr. Richardson. That was what I thought. 

Senator Kennedy. You really believed that at the height of the 
Watergate crisis, that the arrangements that were made with the 


88-374 0 - 89 - 14 



3124 


Judiciary Committee were only limited to you, as an individual, 
and not in terms of the institution that was set up? 

Mr. Richardson. Yes. That was the issue, if you will recall. The 
reason why the hearings took so long was that it was my position 
that as Attorney General of the United States, I could not abdicate 
responsibility for the investigation. I, therefore, insisted on reserv¬ 
ing the power to fire Cox. The issue then became one of “for what” 
which, of course, led to the phrase “only for extraordinary impro¬ 
prieties on his part. 

Senator Kennedy. So it was just limited to you? 

Mr. Richardson. But in the confirmation hearing of me, the un¬ 
derstandings were understandings arrived at as conditions for the 
willingness of this committee to report out the nomination. It was 
never suggested, to my knowledge, at any point in the hearings 
that this understanding would have the force the law or be binding 
on any future Attorney General. That was precisely what I wanted 
to resist. I fought against the creation of some external mechanism 
beyond my accountability as Attorney General, comparable, for ex¬ 
ample, to the present status of an independent counsel, in order to 
maintain accountability. 

The members of the committee resisted that. They wanted to 
have some device that would assure that the independence of the 
Special Prosecutor was not thus subject to my overall eventual re¬ 
sponsibility, and that is why the charter came out the way it did 
and had the status that I have always believed it to have. In any 
case, the really key point, I think, is that on October 20, 1973, 
whatever a judge might later conclude on looking at the testimony, 
looking at the charter, looking at the regulations, these consider¬ 
ations did not even arise. 

Senator Kennedy. Well, Mr. Chairman, I just ask to put in the 
record the regulations. They were worked out. As a member of this 
committee, I remember very clearly. I was very much involved 
with that and I have enormous regard and respect for my good 
- friend, Secretary Richardson, but I think it goes beyond imagina¬ 
tion that the members of this committee were thinking that all of 
this was just established for Mr. Richardson and not for the office. 
The last regulation says, “for the duration of the assignment, the 
Special Prosecutor will carry out these responsibilities with the full 
support of the Department of Justice until such time as, in his 
judgment, he has completed them or until a date mutually agreed 
upon between the Attorney General and himself. 

As a member of that committee, I think it is very clear both 
from the record and the history and what this country was faced 
with it, that this was not a personal contract with Mr. Richardson, 
but it was with the office itself. That is beyond really what this 
hearing is about. I do appreciate the chance to include those mat¬ 
ters in the record. 

The Chairman. Without objection, they will be included. 

[Regulations referred to follow:] 



3125 


CREATION Or THE 

WATERGATE SPECIAL PROSECUTION TORCE 

. Title 23 —Judicial Administration 

Chapter I —Department of Justice 
Part 0— Organization of the Department of Justice 
Order No. 517-73 

Establishing the Office of Watergate 
Special Prosecution Force 

By virtue of the authority vested in me by 28 U.S.C. 509, 510 and 5 U.S.C. 
301. there is hereby established in the Department of Justice, the Office of Water¬ 
gate Special Prosecution Force, to be headed by a Director. Accordingly, Part 0 
of Chapter I of Title 28. Code of Federal Regulations, i- amended as follows: 

1. Section 0 1 of Subpart A. which lists the organizational units of the Depart¬ 
ment. is amended by adding 'Office of Watergate Special Prosecution Force" 
immediately after '“Office of the Pardon Attorney ” 

2. A new Subpart G-l is added immediately after Subpart G, to read as 
follows: 

“Shbpart G-l—Office of Watergate Special Prosecution Force 

| 0.37 General Functions. 

The Office of Watergate Special Prosecution Force shali be under the direction 
of a Director who shall be the Special Prosecutor appointed by the Attorney 
General. The duties and responsibilities of the Special Prosecutor are set forth 
in the attached appendix which o' incorporated and made a part hereof,” 

This order is effective as of May 25, 1973. 

(S) Elliot Richardson, 

Attorney General. 


Date: May 31, 1973. 



3126 


Appendix on Doties and Responsibilities oi the Special Prosecutor 

The Special Prosecutor There is appointed by the Attorney General, within 
the Department of Justice, a Special Prosecutor to whom the Attorney General 
shall delegate the authorities and provide the staff and other resources described 
below 

The Special Prosecutor shall have full authority for investigating and pros¬ 
ecuting offenses against the United States arising out of the unauthorized entry 

into Democratic National Committee Headquarters at the Watergate, all offenses 
arising out of the 107J Presidential Election for which the Special Prosecutor 
deems it nece-~.irv ,md appropriate to assume rcspoii-ibiht v, allegations invoking 
the Pre-id.ait. member- of the White llou-e staff, or Pre-idemi.il appointees, and 
any other matters which lie consents to have assigned to him by the Attorney 
General. 

In particular, the special Pro-ecutnr -hall have full aiithoiity with respect 
to the above matter- for 

—conducting proceedings before grand juries and any oilier mve-ugations he 
deems necessary, 

—reviewing all documentary evidence available from any source, as to which 
he shall have full access; 

—determining whether or not to contest the assertion of “Executive Privilege" 
or any other testimonial privilege; 

—determining whether or not application .should be made to any Federal 
court for a grant of immunity to any witness, consistent with applicable 
statutory requirements, or for warrants, subpoenas, or other court orders; 
—deciding whether or not to prosecute any individual, firm, corporation or 
group of individuals, 

—initiating and conducting prosecutions, framing indictments, filing informa¬ 
tions. and handling all aspects of any cases within his jurisdiction (whether 
initiated before or after his assumption of duties), including any appeals, 
—coordinating mid directing the activities of all Department of Justice 
personnel, including United States Attorneys; 

—dealing with and appearing before Congressional committees having juris¬ 
diction over anv aspect of the above matters and determining what documents, 
information, and assistance shall be provided to such committees. 

In exercising this authority, the Special Prosecutor will have the greatest 
degree of independence that is consistent with the Attornev General’s statutory 
accountability for all matters falling within the jurisdiction of the Department of 
Justice. The Attornev General will not countermand or interfere with the Special 
Proseouinr'- ileri-ioiis or actions The Special Prosecutor will determine whether 
and to what extent he "ill inform or consult with ihe \ttornev General about 
the conduct of his dimes and responsibilities. The Special Pro-crulor will not tic- 
removed from his duties except for extraordinary improprieties no bis part. 



3127 


Staff and Resource Support 

1. Selection "f Staff The Special Prosecutor shall have full auiluimy to orga¬ 
nize, -elect, -uitl lure lu-. own -taff of attorneys, investigator-, .inti supporting 
personnel, mi a full or part-time ha.su>, in such numbers and with -uch qualifica¬ 
tions as he may reasonably require. lie may request the Assistant Attorneys 
General and other officers of the Department of Justice to assign such personnel 
and to provide such other assistance as he may reasonable require. All personnel 
in the Department of Justice, including United States Attorneys, shall cooperate 
to the fullest extent possible with the Special Prosecutor. 

2. Budget. The Spceial Prosecutor will be provided with such funds and facilities 
to carry out his responsibilities as he may reasonably require. He shall have the 
right to submit budget requests for funds, positions, and other assistance, and 
such requests shall receive the highest priority. 

3. Designation and Responsibility. The personnel acting ns the staff and 
assistants of the .'special Prosecutor shall be known as the Watergate Special 
Pro-eciition Force and shall be responsible only to the Special Prosecutor. 

Continued Responsibilities of .Jsststaut Attorney General , Criminal Division. 
Except for the -pecifie investigative and prosecutorial duties assigned to the 
Special Prosecutor, the Assistant Attorney General in charge of the Criminal 
Division will continue to exercise all of the duties currently assigned to him. 

Applicable Departmental Policies. Except as otherwise herein specified or as 
mutually agreed between the Special Prosecutor and the Attorney General, the 
Watergate Special Prosecution Force will be subject to the administrative regula¬ 
tions and policies of the Department of Justice. 

Public Reports. The Special Prosecutor may from nine io time make public 
-uch -l.itemcm- or reports as he deems appropriate and -hall upon completion 
of hi- a—ignment submit a linal report to the appropriate persons or entities 
of the Congress. 

Duration of .lssi gnment. The Special Prosecutor will carry out these responsi¬ 
bilities, with the full support of the Department of Justice, until such time as, 
in his judgment, he has completed them or until a date mutually agreed upon 
between the Attorney General and himself. 



3128 


DOMINATION OF ELLIOT L RICHARDSON 
TO BE ATTORNEY GENERAL 

' usi-i. 


HEARINGS 

BEFORE t HK 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

NINETY-THIRD CONGRESS 

FIRST SESSION 
OK 

NOMINATION OF ELLIOT L. RICHARDSON, OF MASSACHUSETTS, 
TO BE ATTORNEY GENERAL 


MAY 9, 10, 14, 13, 21, AND 22, 1973 


Printed for the use of the Committee on the Judiciary 



UJB. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1973 



3129 


would be somewhat difficult, notwithstanding my sympathy fojfJjT 
objective here, to mak« a brief summary of 25 or 30 minutes 
]phone call. 

Mr. Cox. Yes. I didn’t understand the Senator to refer to a WW 
script of any conversation between us, but I think under all 
cumstances, it would be appropriate to make a special effor t to 
to the main items of the conversation and a very particular iMwi 

the time and place and things of that kind. . i 

Senator Mathias. If I could hypothesize just a second, this 
ing a question came up as to what the Special Prosecutor would aw 
he observed that the U.S. .attorney in a certain jurisdiction 
ing down on the job, and it seems to me that in that kind of sihtfuajl! 
he might call up the Attorney General and say, we have a proWjW 
and tne results of that conversation—not the detail of it, but wjW 
that they concurred that the TJ.S. attorney should be remove d Wlf l 
further participation in the case, or that he should be suppleunwR 
by a special assistant, or whatever the decision is—I think that Mp- 
that we are getting; at here. 

Mr. Cox. I think that is a very important, excellent 
I see no difficulty, because I do understand that it doesn’t inv olV** ; 
effort to make a complete transcript which could become cumberrtlfc' 
Senator Mathias. Well, if that is agreeable to you and to the 9**. 
tary, I think it might be a helpful method of insuring the comjw 
accountability of these proceedings. 

Secretary Richardson; Yes. Let me mention again, Senator M dwg ' 
the possible desirability: atsome stage which Professor Cor 
liavo to determine upon when the investigations were sufficientlypW 
plete so as to make it appropriate for a kind of postaudit 
conducted, attd at that point, whoever did it—it might be a paawjft 
three distinguished citizens enlisted for that purpose—'it would 
ously be highly valuable to them in carrying out that fnnctWIPjj 
have available a full and comprehensive record of all ofthe 
that Professor Cox had taken and that were taken under his 
direction. It seems to me that this is a situation where that kifldlg 
record is ir important than Would ordinarily be true and it ittMk 
importer! ise the issue in the end is one of confidence. Andlfw 
said the day, since the necessity may arise in certain Cif t»p| 

stances of proving a negative, the mote adequate is the record of **j<jj 
was done to turn up possible evidence and what was done 
down evfery lead will oe, in the end, if the conclusion was 
the only way of providing assurahce that all possible steps were t*W*| 
Senator Matihas. Well, that is exactly what I had in mind 
ing this suggestion and I am very happy if it can be adopted tlfiffi 
of the guidelines. , . 

That brings me to one further question on the guidelines. HedjgP 
considered the mechanism by which you would finally publish tbrtPf 
They could be published in the Federal Register in the 
which departmental regulations are phblishld; could they notfwffl 
Secretary Richardson. That is what I expected to do, becatiee wflffi 
to a dw^ree supersede the regulations that provide for delegati on, 
example, to the Assistant Attorney General for the Criminal DirijP*l 
in certain respects, and so therefore, the most effective way of muwf| 



3130 


■ ■* ■ 

they do, as a matter of law, supersede existing regulations. 

S them the same legal status through publication in the Federal 

r Mathias. And I have just one further question of the 

we were in the previous hearing here, we discussed the ques- 
'jjjjjof some statutory guidelines for the Federal Bureau of Investiga- 
particularly in the area of espionage, crime, and domestic sur- 
in which there ought to be, it seems to me, some permanent 
2£rt<>ry guidelines. In the light of some of the stories in the press: 
S*** have been circulating in the past week or two, it seems to me 
this matter is perhaps even more critical than when wc discussed 
P*** week and that the desirability of statutory guidelines, to which 
gjWigreed at the time, is even more pressing. I am wondering if nt 
*»rly time after you have assumed the duties of the Attorney 
whether you could give the committee your advice on the 
lines which you think would be appropriate in these vein vital 
w that we can consider together what needs to be done. Been use 
Pjf elearly, this is an area which seems to be out of hand. 


|;^tretai7 mciTAHMOH. I agree, Senator Mathias. I would he glad 
IMHning with the chairman and you and other members of the mm- 
what would be the beat way to proceed. One way to do it would 
W* me to develop specifications for a bill that could be submitted 
f J*i for review and then be the subject of a hearing, nr we could 

nhuiMt f* _ i* _ • ii i mi i i* * it i * * 


•whin specifications of the bill and discuss it informally, leading 
wMtu the development of definitive legislation. 

Mathias. Well, I think that would be extremely useful 
mi do think it is urgent. I am not trying to impose any deadlines 
wjfy yt When my father and I were practicing law, he used to correct 
1 1 promised a client that we would have a deed readv for him 
’fffJlWPday. He said, tell the client that you will have the deed at the 
j**d**tpossible moment. So I will impose that kind of deadline upon 

j||2*er*tary Richardson. I will be very glad to accept it on those 

f§*. n * tnr Mathias. All right, fine. Thank you very much, 
t jo* Chairman. Senator Hart. 

Iljwdor Hart. It is rather late in the dav. Mr. Seeretary. 

"m fensor, I add my welcome. 1 congratulate the Sec ret a ry on his 
tfWww^itnd I am delighted, Professor, that you are accepting, 
jff Earlier, wo were getting pretty far out on the liinb nliout the degree 
a fj ttdepcmlence that we were insisting on. I think thnt through an 
jjwtt*uge of correspondence with the Secretary, we have developed 
jPJJ* guidelines and through the discussions that were a part of t•> 
we have.pretty well nailed down a degree of independence 
^ will permit the people of this country to believe what 

IF*! finally Import to them; at least believe thnt it is your best judg- 
JJWt fcnd yours alone. I had made clear earlier that i never thought 
Secretary would do other than what the facts require even i f lie 
fjjt twining the investigation, but along with others, I did have con- 
fWlutbttt we attach as much of the appearance of ohjcctivitv as 
'PHWWJf possible. 



3131 


The Chairman. Senator Hatch. 

Senator Hatch. Thank you, Mr, Chairman. Welcome, General 
Richardson. We are grateful to have you here today. Mr. Chair¬ 
man, Senator Specter has to leave, but he has one question so let 
me yield to him for the one question, then I would like to make 
some points. 

Senator Specter. Thank you very much. Senator Hatch. I appre¬ 
ciate your yielding to me. I must leave in a moment or two and 
there was just one point that I wanted to ask you about, Mr. Attor¬ 
ney General. You point out, at page three of your statement, that 
it was essential to maintain the continuity of the Watergate inves¬ 
tigation and that Judge Bork took immediate steps to keep the Wa¬ 
tergate Special Prosecution Force together. 

The one factual question which I would like to have answered, 
although I do not know how much weight this has really on the 
proceeding as a whole, but I would be interested to know your un¬ 
derstanding of the facts because I have heard it reported that the 
initial position taken by Judge Bork was to return the Watergate 
Special Prosecution Task Force to the Department of Justice, to 
Mr. Peterson, who was then the Assistant Attorney General in 
charge of the Criminal Division. It was only after the public furor 
arose that the matter was returned to Mr. Ruth and others on the 
Special Task Force. 

Mr. Richardson. As to these events, Senator Specter, I was, of 
course, not a firsthand witness. What I know about them derives 
partly from what I was being told by former associates in the De¬ 
partment at the time. I was, of course, acutely interested and con¬ 
cerned. Some of what I am now aware of is what I have been re¬ 
minded of in recent weeks and, to some extent, from other sources, 
so it is a little hard to know what exactly I knew then. 

But I can only say that my understanding of Bob Bork’s role, as I 
wrote in my book, goes even beyond what I think it may actually 
have been. I thought that he had, from the outset, insisted that 
there must be a new Special Prosecutor, that he had directly resist¬ 
ed the President’s directive to return the responsibility for the in¬ 
vestigation to the Assistant Attorney General, Henry Peterson. 
When I resigned on the afternoon of October 20, the President told 
me that this was what he intended to do and that he intended to 
get the Watergate Special Prosecution Force disbanded. 

I am satisfied, from all that I know, that from the outset, Bob 
Bork was first of all, determined to make sure that the Special 
Prosecution Force was kept intact so that it could carry on the in¬ 
vestigation. The question at the outset as to whether it was under 
Peterson as Assistant Attorney General, was a secondary question 
as long as the people involved, Ruth and Lacavara and others, were 
in charge of the investigation itself. Of course, whatever may have 
been the uncertainties as to the Peterson role from the afternoon 
of October 20—those uncertainties were certainly removed very 
quickly when Bob Bork began to pursue the replacement of Archi¬ 
bald Cox. 

That is really about all I know. I do not think there is any basis 
for the impression that he was ever part of any effort, originating 
in the White House, to undercut the integrity or the continuity of 
the investigation. 

V 



3132 


Senator Specter. Thank you very much, Mr. Attorney General. 
Thank you, Senator Hatch. 

The Chairman. Senator Heflin. 

Senator Heflin. General, if you had not made a commitment to 
the Judiciary Committee, would you have fired Archibald Cox? 

Mr. Richardson. Well, that is an impossible question. I believed 
that the role of the Special' Prosecutor should be independent from 
outside interference. I would have to go back. When the President 
asked me to become Attorney General in May, he left to me the 
question of whether or not a Special Prosecutor should be appoint¬ 
ed at all. I thought about that for about a week, more or less, and 
announced, at the end of that period, that I concluded that I should 
appoint a Special Prosecutor. I gave, as my principal reason, the 
fact that I had been associated with the Nixon administration from 
the beginning and that although I felt confident in my own ability 
to carry out or assume responsibility for the investigation without 
being subject to external pressure from the White House or any¬ 
where else, nevertheless, I thought that public confidence in the in¬ 
vestigation would be enhanced if it were placed in the hands of a 
Special Prosecutor. 

And I think that my announcement addressed the essentiality of 
his independence. Certainly, in any case, from my very first discus¬ 
sion with Archibald Cox himself, the question of how his independ¬ 
ence would be expressed, and respected, was at the very forefront 
of our discussions. 

It was clear that he would only take the job if he was satisfied on 
this score, and in fact he and I had reached what was to us an ade¬ 
quate understanding on that point, before the further concerns 
about it were expressed by this committee. 

So, the question of my firing Cox could not have arisen under 
any circumstances in which I was involved, if the basis of firing 
him had not been clearly founded on some impropriety on his part, 
some demonstration of incapacity, or something else that would in 
fact have been extremely unlikely. 

The issue, therefore, became one of the inherent power of the 
President over the executive branch, and executive branch employ¬ 
ees. 

This was the question addressed in the memorandum I men¬ 
tioned earlier by the Office of Legal Counsel, which concluded that 
the President could have fired Cox himself, regardless of the char¬ 
ter. 

I felt strongly, that the grounds on which the President wanted 
Cox fired were a mistake, apart from the charter, because they in¬ 
cluded a restriction on Cox’s access to tapes not already subpoe¬ 
naed. 

And I spent much of Friday trying to convince the White House 
that that restriction should not be proposed. In fact I spent much 
of the week trying to fight it off. 

So, I guess that is a long way of saying, Senator, I cannot place 
myself in that hypothetical situation. 

Senator Heflin. Well, I gather from your answer, you indicate 
that you in effect made a commitment to the committee, you made 
a commitment to Archibald Cox on his independency in the role. 



3133 


Do you consider that those commitments—well, I will ask you 
this: do you consider that your commitment to Cox was between 
you and him, and did not inure to your successor? 

Mr. Richardson. Yes, as I so—as my prepared statement says, I 
thought that his successor could of course conclude that he should 
renew this understanding with Cox, or with a successor to Cox, but 
that whether he did it or not was not controlled by what I had 
done. 

As I said to Senator Kennedy, we never would have had the pro¬ 
tracted hearings that we had. I would not have had to negotiate 
with individual Senators, particularly Senator Hart of Michigan, 
over this issue, if I had not said I am not going to take over the 
Department of Justice on any terms that place my ultimate respon¬ 
sibility toward this investigation on a different footing than any¬ 
thing else in the Department. 

So, the question was how do you square that circle? How do you 
assure independence on the one side? And what I said in effect 
was, I will observe these understandings, and as far as I was con¬ 
cerned that was it. That the committee, if these understandings 
had not been voluntarily sustained by a—a second Attorney Gener¬ 
al would have had to take steps to reinstate them. 

Senator Hefun. One further question. Do you think that your 
advocacy to Robert Bork, to stay on as prosecutor, and to comply 
with the President’s request, was a violation of your commitment 
of independence to Mr. Cox? 

Mr. Richardson. I did not think it was a violation of my commit¬ 
ment. I was already out, or on the way out. I am a little unclear as 
to how much of the discussion took place after the Cox press con¬ 
ference, and before I went to the White House, and how much of it 
took place when I came back. 

In any case, what I have said, I believed that the President 
would accomplish the firing in one way or another. I believe that 
he had the legal right to do so. I believe that Bork was not person¬ 
ally subject to the same commitments, and was thus personally 
free to go forward with this action, and that his doing so, in the 
circumstances, was in the public interest. 

I was concerned that if he did not, as I said, a chain reaction 
could follow, meaning that if he resigned, the dominoes could fall 
indefinitely, far down the line, leaving the Department without a 
strong and adequately qualified leader. 

That was a very practical concern. We had a situation in which 
not only Ruckelshaus and I, but all my top staff, were picking up 
and leaving. 

So I say, I did not think that Bork was bound. Cox would be out. 
I would be out. 

The question really, as a practical matter was, how do you main¬ 
tain the continuity and the integrity of the investigation in these 
circumstances? 

The Chairman. Thank you. Senator Hatch. 

Senator Hatch. Thank you, Mr. Chairman. 

Again, I welcome you, Mr. Richardson, to our committee. I think 
you have put to bed this issue of Watergate. It should have been 
put to bed many years ago, and I think by your prior statements 
you have done it again here today. 



3134 


And I thought it was very interesting when Professor Oakes, who 
testified yesterday, whose reputation is absolutely impeccable, as is 
yours, made it very clear that Robert Bork was instrumental in ob¬ 
taining Leon Jaworski who finally did really put the Watergate 
matter behind all of us. 

So I do not know what all the fuss is anyway. Let me just take a 
few minutes. This type of fuss is part of what I am going to go into 
for just a few minutes at this time. 

From the outset of this debate, we have all been barraged with 
politics, we have been lobbied, we have been lied to, we have been 
led astray by charges and counter-charges. 

And perhaps the key example of this phenomenon has been the 
full-page ads that have been put in the newspapers. They are really 
offensive. These ads mischaracterize, they misconstrue, they mis¬ 
lead, and I t hink they distort Judge Bork’s record, with regard to 
his record. 

Now just to test that these articles mislead, I picked up one of 
these ads and put it together, and in just a short while I decided to 
analyze it, and I illustrated 67 falsehoods in this one full-page ad 
put out by People For The American Way. 

Now I cannot go into all the falsehoods, so I would ask unani¬ 
mous consent that these 67 flaws that I have put together be 
placed in the record at this point, Mr. Chairman. 

The Chairman. Surely. 

[Aforementioned material follows:] 



3135 


62 . UJSL£_L£_JiiL_E’£jsl£_£L 


FALSEHOOD 1: The TITLE. "6or.K VS. THE PEC-PLE" GROSSLY misleads amd 
N. I S- C GNST PLIES KI S PE I LOSCEHY . FoRE THAT: ANY OTHER JURIST III MOCE'N 

e 'story Fork kcull sustain the people's ric,ht tc govern 
THEMSELVES. ThE TITLE SHCl'L D FA I hi Y BE: BOCK AND THE PEOPLE VS. 
the Splcial Interests. 

Falsehood 2: Conteovepsy based on "good reason." Judge Bcrk is 

EMMEMTIY DUAL 1F I ED AND CENTRIST IN HIS VIEWS. THE CONTROVERSY IS 
GENERATED flY THOSE WHC DC NOT RANT PRESIDENT P.EAC-AM TC HAKE 
ANOTHER APPOINTMENT. 

Falsehood 3: "extremist.” Those calling him "extremist" would not 
KNOW A JUDICIAL MAINSTREAM FROM A JUDICIAL JET STREAM. SlX RECENT 
ATTORNIES GENERAL FROM BOTH PARTIES TESTIFIED. NONE CF THEM 
CONSIDERED HIM EXTREME. BUT ENDORSED HIM. 

Falsehood 4: "consistently taken positions against constitutional 
fights." In fact, he has strongly defended the rights of average 
Americans to govern themselves, he has consistently sustained 

EVERY RIGHT FOUND IN' THE CONSTITUTION AND OPPOSED JUDGES WHO TRIED 
TO INTERPRET THE CONSTITUTION TO FIT THEIR OWN VIEWS. 

Fal c Chcc.[ >: "St l r ilisitg hjkee:." Judge Cork lie rut puce any 

STEF IL I it' T I ON. 

Falsehood 6: "Company las pumping so much lead." This creates a 

FALSE IMPRESSION. (T IS NOT MENTIONED THAT AN ADMINISTRATIVE LAW 
Judge had found that there was no way to eliminate the lead levels 
sufficient to eliminate the risk. Judge Bcrk was bound by that 
f i no i he 

Falsehood 7: "the company ordered all women workers tc be 
sterilized or LOSE THEIP JOBS." In fact, tre ccmeary offerec the 

WOMEN A CHOICE. PUE TC THE HAZARD, FERTILE WOMEN COULD NOT WORK 



3136 


IN THE PLANT. RATHEK ThAN RELEASE TEE ROMES OL’TF IGHT / ThEY WERE 
OFFERED A CHOICE. THE WOMEN THEMSELVES MADE A VERY DIFFICULT 
DECISION. 


Falsehood 6: "When the union took the company to court." This is 

ONLY PART CF THE TRUTH. IT IS NEVER MENTICNEC THAT THE OSHA 
REVIEW COMMISSION, THE EXPERT GOVERNMENT ACENCY, HAD ALREADY FOUND 
THE COMPANY COULD OFFER THE WOMEN A CHOICE. 

Falsehood 9: "Judge Bork ruleo in favor of the company." This 
SOU hDS LIKE JUDGE BORK APPROVED CF THE "UNHAPPY CHOICE" THE WOMEN 
HAD TO MAKE. IN FACT, HE DEPLORED IT. 

FAL'tlLCD -i. (in.i il.b t H.l T , CaL F,.| ;: t ..<_t [■ I K 

ns wcict. Judge Eg. k is scleiY elj ei.. n is rk mj.t ionec hat 

1 HE 1.(111 W.-E U-AMNCUS. CHE CF |F £ ClrLI. LUKES VC1 I T.C TO LPFCL f. 

V RE i/w ' c '..Fitter was Judge, new justice, Fcalia. Ifleec if.e. 

r ESI CF 1FE ClFCUIT -UDC-ES REFUSED 1C C\ CRT LAN TFL ULaRINCUS COU 1 
I UL I HO . 

Falsehood 11: (same as adcve) Blatant sensationalism. It is not 

MENTICNEC THAT THE LAW AS WRITTEN EY CONGRESS OID NCI INCLUDE IMS 
SITUATION AS A "HALAfC" WITHIN THE TERMS CF T HE OSHA fC ~. TO TF'E 
EXTENT THAT FAILURE TC ANTICIPATE THIS REGRETTABLE SITUATION IS 
CAUSE FOR BLAME, CONGRESS CAUSED IT AMD SHOULD CC.I RECT IT bY 
tEC I SLAT ION. 

Falsehood 12> "Billing Consumers." This is incorrect. Neither F,c(k 

NCF THE COURT COULD EILL Of AUTHOR 12E THE BILLING OF ANY 

consumer. That was FERC's responsibility. 

Falsehood 13: "Dork supported an electric utility." This is 
INCORRECT. IN 1984, THE DATE CITED BY This ACCOUNT, JUDGE BORK 
SPECIFICALLY VOTED AGAINST THE UTILITY AND SUSTAINED THE 

Commi ss ion. 



3137 


Falsehood 14: (sake as above) Deliberate misleading information. 
Even in the 1965 and 1967 reheatings of this issue. Judge Born did 

NOT RULE ON THE MERITS OF WHETHER CONSUMERS COULD BE BILLED- BUT 

INLY l E ” E EM INCH THAI Ff:K RAT l-X' aLICUATELY ILSFCNDED Hi THE 
EVIDENCE Of THE CASE. 

Falsek.cc 15: ‘’Thanks tc judge Bonk." Hyeereolf. .ucle Ecrk is 

ELAE.es: ELL A EEC IS ION OF TEE MAJORITY CF TE.E D.( . CIRCUIT. THIS 
OVERLOOKS TEAT THE C.OLKT V AS LhAMMCUS IN 1984 IN FAVCG OF FE.FC. 
"HAT TEE COURT VCTED 2-1 IN 1985 AGAINST FERC. AND THAT THE COURT 
VOTED 5-4 IN 1987 AGAINST FERC. .JUDGE ECRK WAS JOINED EtY AT LEAST 
A MAJCFITY OF HIS COLLEAGUES Lf THE ClFCLIT COURT, 

Falsehood 16: "(. . . 1984)." As noted earlier- this citation 
IGNORES THAT THESE FACTS WERE SUBJECT 1C THREE SEPARATE JUDICIAL 
IULI NOS. 

Falsehood 17': "Me privacy." Misleading, judge Fcek does not 

CPROSE "PRIVACY," EITHER: PEF SE CR AS A CONSTITUTIONAL VALUE. As 
A MATTER OF PEiSCNAL PREFERENCE- HE EXPRESSED GREAT RESPECT FOR 
PI IVACY. HE STATES- FCR INSTANCE. ThAT THE 1ST. 4TH, AND 5TH 

Amendments, among others- specifically protect privacy interests. 

Falsehood 18: "fight to privacy in the Constitution". No one else 

FOUND ONE EITHER: UNTIL 1965 WHEN SOME JUDGES DISCOVERED IT IN THE 
"PENUMBRAS CF THE EMANATIONS’’ CF SOME CONSTITUTIONAL FHRASES, 

This overlooks that the wcrd "privacy" nowhere appears in the 
Constitution and that the judicial creation of this undefined 
right WAS CONTROVERSIAL IN 1965 and remains controversial today. 

Ju.TiCl , f lac. „r„ S eci.re ;.e run . k.i.t at ire ttif. 
F:ue:sck. lP all r.,.o ii.c. :.r; i:..r l.crEl tc R'uilarc. i/.c 
L lKEVISt ClliO-.EL THE 'EASGMNC if VR : S CASE. 

Falsei.ucd 19; (same >.s abcve). This cvekucks the impgssie il ity of 
DEFINING A EPOAt CONST ITUT 1CNAL FR IVACY FIGHT. 4 S JUDGE fCfK 
ASKED, COES TH S MEAN PRIVACY T r TAKE DRUGS IN YCDR CNN HOME - 
FRIVACY TC FIX PRICES iN YOUR OWN HOME- PRIVACY TC AUl.SE A SPOUSE 



3138 


IN YOON CKN HONE? C>F COURSE NpT. 

Falsehood 2F: "Supreme Court was wrong". judge Bof.k faults the 

REASON I NO OF THE COURT. I.E.. THE INVENTION OF UNWRITTEN I IGHTS, 
PUT RE CALLED THE CONNECTICUT CCNTKACEPTIVE LAW "NUTTY." 

Falsehood 21‘: "use of contraceptives by marf.ied couples a 

F UR I SUABLE CFIME". This LEAVES THE IMPRESSION THAT MARRIED 
COUPLES WERE CONVICTED CF SUCH A CRIME. AS JUDGE CORK MENTIONED, 
ThE "NUTTY" CONNECTICUT STATUTE WAS NEVER USED TO PUNISH A MARRIED 
COUPLE FOR USE CF COMTFACEPTIVES. 

Falsehood 22: "Turn Back the Clock ck Civil Rights". Unfounded 
slander. Judge Bork has advanced civil fights in all his public 

SERVICE CAPACITIES. He HAS NEVER "TURNEO BACK THE CLCCK." ROBERT 
&CRK HAS NEVER ADVOCATED (AS SOLICITOR GENERAL) OR RENDERED A 
JUDICIAL OECISION (ON THE D.C. CIRCUIT) THAT WAS LESS SYMPATHETIC 
TC MINORITY OF- FEMALE PLAINTIFFS THAN A MAJORITY OF THE SUPREME 

Cou 7 . As S C.. lULFE fCK LLH .EvEIaL GiCN F.CAM At WCE; F OT 
CIVIL RICHTS, INCLOD-Mb Pi Chit IT ION OF PRIVATE D1 S CR IN I N«K f Y 
t CF Tf ACTS (FUNYO U V. f fCr AFY ) HI f.EDISTT ICT INC TC FNHfNLE 
r-i i Nor i ty vc 11 ng sT i eno.th (Unitfd jfi ish, v. Cary ). 

Falsehood 23: "ugliness". "Ugliness" was inoeec the word 
FIOFESSOR ECKK USED TO CESCRIE.E COERCION OF PFIVATE ACCOMODATIONS 
OWNERS, BUT ’UGLINESS” WAS ALSO THE EXACT WORD USEE IN THE SAME 
AF.TICLF TC CASTIGATE ALL FORMS OF RACIAL D I NCR INI I NAT ICN. 

Professor Bork's position, fven though later recanted, should not 

EE FORTrAYEG IF A LIChT THAT APPEAF S INSENSITIVE TO RACIAL 

f’l EJUE ICE . 

Falsehood 24: "how Pi CFLSsor Fork cescrie.ed a law”. Selective 
DUCTING OUT OF ENT IT E CONTEXT. THIS 1963 STATEMENT WAS RECANTED 
OVER FOURTEEN YEARS AGC. JUDGE E-C.RK'S ADMISSION OF ERROR IS 
WELL-KNOWN, YET NOWHERE MENTIONED IN THIS TABLOID. 



3139 


Falsehood 25: "criticized decisions that stopped states from using 
poll, taxes". Half truth. Judge Bork personally opposes poll 

TAXES; HE CRITICIZED ONLY THE REASONING BY WHICH THE COURT REACHED 
ITS RESULT — POSITION SHARED BY JUSTICES HARLAN, STEWART, 

Frankfurter, Jackson, Brandeis, Cardozo, and Black- mot to mention 

A BROAD ARRAY OF CONSTITUTIONAL SCHOLARS. 

FAl-.EKCD 26- "CL.llC'ZH DK'SICN TEAT STOPPED STATES F: ON jSIf.O 
. . . LITERACY TtSTL". HALF liLTF. DODGE FORK PEI SCNALl Y OPPOSES 
L lltl ACY TESTS; HE CMTICIZED ONLY TEE REASONING BY EE • CH TE L 

rein i lacked ns result -- a position seated by Justices Harlan, 
Stewaet, Fulcer, Black, Flackmun- and Fcweil, nct to mention a 
BROAD ARRAY OF COK’Sl ITUTICNAL SCHOLAR'S. 

Falsehood 27: "poll taxes . . . tc keep minorities from voting". 
Teiis is incorrect. This misstates the Supreme court case in 
cuestion, The Court in dALBEL pointedly mentions that the case 
iIVCLVED NO EVIDENCE CF FACIAL Dl SCRIM NAT ION . 

Falsehood 2f: (same as aeove). This is a grossly unfair 

CHARACTERIZATION. JUDGE BcRK STATED THAT IF THE HARPE R DECISION 
EiAD INVOLVED’FACIAL DI SCRIM NAT ION, HE WOULD NOT HAVE CRITICIZED 

IT. He would vote to strike down any discriminatory poll tax. 

Falsehood 25: "literacy tests ... to keep minorities from 
voting". This is incorrect. This misstates the Supreme Cour.t 
case in question. Trie Court in Katzeneach pointedly mentions that 
the case involved no evidence of facial discrimination. 

Falsehood 36: (same as above). This is a grossly unfair 
characterization. Judge Bcrk stated that if the Katzeneach 
DECISION HAD INVOLVED RACIAL DISCRIMINATION, HE WOULD NOT HAVE 

CRITICIZED IT. HE I,GILD VOTE 1C STRIKE DGl,'. AT Y C" SCR IN. I NAT CRY 
LITE! AO I LIT. 


Falsehood 31: "opposed tee decision that rale, ali Arch cans equal 

AT TEE BALLOT EC> — 'ONE I .AN-CNE VOTE'". THIS IS AMP IC UGLS AND 



3140 


INCORRECT, IT SEEMS 10 IMPLY TEAT JUDCE ECRK OPPOSED THE OUTCOME 

in Faker v. Cape, the landnaik case that mage reappcktionment 

DECISIONS JUSTICIABLE. In FACT, JUDGE ECR K AGEEES WITH Bakfl . 

Falsehood 32: (safe as above). If this language refers to Judge 
Folk's ouestions about the need For. nathematial peefecticn in 

APPORT I CEMENT DECISIONS, IT IE INCORRECT TO REFER 1C THIS CONCEPT, 
AS OPPOSITION TO "THE DECISION” BECAUSE THEF.E KEf E MANY SUCH 
DECISIONS (E.G., PRE I SI F R 1969- KARCFIFR 1983). 

Falsehood 33: (same as above). It is unfair to suggest that Judge 
Fork opposes faifness "at the ballot lox." Judge E>crk endorses 

THE POSITION OF JUSTICES STEWART, WHITE, REHNQUIST, AND BURGER 
WHICH WOULD SUSTAIN A RATIONAL STATE PLAN THAT DOES NOT FRUSTRATE 
THE MAJORITY KILL -- A VERY FAIR ALTERNATIVE TO MATHEMATICAL 
PERFECTION. 

Falsehood 34: "Should America go back". If you repeat a falsehood 

OFTEN ENOUGH, SOMEONE WILL BELIEVE IT, ONCE AGAIN THIS SUGGESTS 

that Judge Bork, who advanced nearly every significant civil 

RIGHT, WOULD SOMEHOW SEND AMERICA BACK. 

False pool 53 "aw iefic.h s.f. .in, < iv il r chts e-tiles". V UD(£ 

U,FK I.CCLE Ml ‘ EOF El "SE ilEE ‘ v II . I CP-Ti F Al 1L F '• ” >1, FACT, F!. 

APPFCU'S OF f,:,tA<P:.V. f.OAt.D -HI USTiHEC I t FEAT FI, I Y THAT PL WCLLt 
LE'PEC: ( Pit" SUSTAIN PIECE LENT S IN THIS Af FA. 

Falsehood 36: 'If Ft ,deft E>crk is on tie Cucft. we nay have to." 
This ignores his re core on tf.e Cifcuii Court — tpf. lest indicated 

OF FIS PEI F OF MARC E ON THE Si PEERS CCUI T. AS A JUDGE- HE SUSTAINED 
EVERY CIVIL RIGHTS LAW FL FACED. HE STRUCK DOWN: A SCLTF CAIOLUA 
VOTING PLAN THAT N.iGHT F AVE [If EN C I SCR IN I NAT OF Y ( £liMl£R_DCiUl'LLr) - 
APPLIEt THE ECUAL FaY ACT TC TF1E FOREIGN SERVICE ( QSCS KY- PALNJEE), 
PEFM1TFD A Cl EOF IN. I NATION CASE AC AI NS T IMF. flAVY (ENLOEI). AND 
PUNISFIED DISCF IMINA1 ION AGAINST STEWARDESSES (LAJlEELY) . 



3141 


Falsehood 37: "f-o lay in court”. This creates the erroneous 

IMPRESS ION THAT JUDGE EORK L ILL DENY COUNT ACCESS TO f'EUTONIOUS 
CLAIMS, TO THE CCHTHAEY, HE HAS GRANTED COUF.T ACCESS TC THE 
EXTENT POSSIBLE UNDER CONSTITUTtCNAL AND STATUTORY DOCTRINES OF 
JUSTICIAEILITY. 

Falsehood 36: "Book has long believed that counts should not hear 

CERTAIN KINDS OF CASES". THIS FALSELY SUGGESTS THAT JUDGE BORK 
HAS A "HIT-LIST" OF WORTHY CLAIMS HE WILL NOT HEAR. IN FACT/ HE 
WILL HEAR ANY KIND OF CASE THAT IS JUSTICIABLE. THIS ALSO CREATES 
THE IMPRESS ION THAT JUDGE BORK ALONE HAS THIS PECULIAR "HIT-LIST" 


' . .1 : , . . ...... I. f . 

F-l: O OUT 39; ' ’ '■ i,F ID” FmCCT >,L CpTiSTICS, LY 

: tlECT U IE ' ’U-T i L CAFES/ >00 LAI. OFT *.( U. FOi / I.V 

nupcs.TiCN, The (-lest ion tm; cuort tc raise is, who selected the 

l 11 CASES/ I.C T THE ’LET CONCLLS ICN . 

FhLSEEUOL Ilf: "CONTROVERSIAL CASES". pALSEHCODEl: STATISTICS. ThE 
GM" v CASES CKSEN ARE NQNLNANINDUS CF SPLIT decisions. These a.il 
LESS TE.AT. 1C% OF Ul.EC-E EOTR'S COURT CASES. ThEIE IS RO SLFFOTT 
FCR TIE CONCLUSION TEAT CLEAL LECAL OUTCOMES ARE REOLIREC IN 
UNAf INCUS CASES. SPLIT DECISIONS ATE COINCIDENTAL Bf CAUSE 
TKI EE-JUDGE FANFL S ARE CHOSEN RANDOMLY. 

Falsehood 4i ; (sar.e as above). The analysis of the l*t cases is 

SKEUEC TC f?EACh A PARTICULAR RESULT. EVEN SOME NONUNANIMCUS CASES 
ARE LEFT OUT CF TEE SAMPLE TC ENSURE TRiE PRECONCEIVED RESULT. 

SCNE UNANIMOUS CASES ARE INCLUDED FCR THE SAME PURPOSE. FOR 
examplf, Haiti an Rffugfe Center , a unanimous affirmance, is 

INCLUDEC BECAUSE ONE JUDGE HAD A DIFFERENT RATIONALE. 


Falsehood 42: (same as above) Categorizing cases, regardless of 

LEGAL ISSUES, BASED ON THE CHARACTERISTICS OF THE WINNERS AND 
LOSERS IS ILLEGITIMATE AND MSLEAEING. CNE EXAMPLE. IN THE 



3142 


!s~. Ak.J. ..i.. .b. L> ' ' « ' L > r •„ . \ /•_ # C . . v • ( 

V ^ ■ _ * < " L • i • : - I • »U • ■ , . >• L . I i. ^ J. i f if / b h 

’ | -C-Li.. >'} 1 !: C/*\£ »-* i i f .’• ; }• UK t [ <! iEil. (.*/■•', if\ lC-U, i ' 

Ti..- cau-ici mat ;cr. i c 'M.Ji' tc se.ve tf.l ii.umits of 
i !_ r C'OKLAf . 

FmL SFI'I C -f L l. (SAf E A* ABOVE* Tt-! S CREATES THE FALSE IM.PF.ESSION 
TFM Jl-CGE Ccf-K ALWAYS DECILES CASES CDF. WAY. I I. FACT, HE ACIEr.Fj 
l IH CAf Ttl.-APPOIMtE CIF ZF.L'K C : 91% OF IFF. TIDE, M TH 
CAF TLF-APPO i MCE f I KVA (AN AVCWEC LIBERAL.) 82/' CF THE TIME. 

FALSEHOOD L 4; 'SOCIAL SECURITY, MLITAfY VETERANS, MINORITIES, THE 
F ARCI CAPPED, AM TF:E HOMELESS". FALSE IMPRESSION. THIS LIST Of 
SYf PATHETIC. C-F OOPS CREATES THE IMPRESSION TFiAT JUDGE EoRK 
CUETCTAFILY f.OLES AGAINST MNCMTIES AND C I SAL'VANTAOEC . IN FACT, 

judge Bock fias f.uleci in favcf, of women (Palled, Csosky , Laff ey), 

HOMOSEXUALS (COE), BLACKS ( EmiCF.Y , SLMTEf COUNTY ), AND hAS BEVEL 
TAKEN A POSITION LESS SYMPATHETIC TC THESE GROUPS THAT THE SUPFEME 
Count. 

Falsehood 45: "Big Business is Always Right". Repeat a lie often 
enough. Judge Bonn's second is one of great sympathy for 

Ml I NOR I T I ES ARC WOMEN. 

Falsehood 46: “Bof.k has already made up his mind". Character 
assassination. Judge Bcrk is accused of having a closed mind at 

, 4- ] E i C > I . L /, ! L . .1 i r L La .’ >■ i I I LL 1. . r 1. . - /. LE El • UF F E . F U 1 U(. 

OF LL TO CF/la E t C TF CAF.KCi rt TI.CF . 

Falsergoi h 7 ■ "9611". "5 out cf 5". ’1C out cf 1C", Belem ive 
STATlMiCS, SEE ‘9 ABOVE . CHOOSE LIC HT CASES Alt' YOU CAN GET ICO" 
KJ- AtY FESULT. FOE- IM STANCE , SEVERAL CASES (HC&EI-, E . C.. , tlifiECUC 
iLhEJJLLLi: - FEATLF E ONE BLSlNFSS SLINC ANC THEE . 10 liOMOEi' TFAT A 

BUS I NESS WINS. 

Falsehood 4f: (same as above) Falsehccded statistics, see 4C 
aegve. For example- Dlcn endli-c , cue of Judge Fork’s most 



3143 


COKTC VEf-S IAL. DECISIONS, IS HOT INCLUDED DECAUSE IT WAS UNANIMOUS. 

FALSEHOOD 4S: ( SAME AS ABOVE): SKEWED ANAL YS IS, SEE 41 ABOVE . FOR 
INSTANCE. Ouckse Bork rules foe a se-.au pus I ness in a suit against 
lit FtrEIAL GOVERNMENT AND IT IS STILL CALLED A "DIG" BUSINESS 
V ICTOEY. (CJ.11 ZEN^CflEhDlMlIhG CQFiKI TILE > 

FALSEhCOD 5( : ( SAME AS ABOVE ) : ['I SCATtUOH Z IN6 CASES. SEE 42 
ABOVE . 

Falsehood 51: (same as above): False impression, see 43 above. 

Falsehood 52: "book on antitrust laws": Misleading 
CKALACTERI ZAT ION OF EOOK. IN FACT, SIX OF NINE JUSTICES CF THE 

Supreme Count have cited this dock and all nine have joined 

i.i-lf.iCIL l'lif.0 1 IF . .S i i Fl • f«. '.I.Ali.E l .F It LIT LAI 
if, AMERICA. 


Falsei r,a 55 "conclcmei aie me. t e i s": Seiecue luotinu olt lf 

vCNTfcXT , A FL’U EXAM It, A1 ION OF HE i’.UOK INDICATES ''HAT JL'DI E 

Folk's entire there is cosine: del fane. He indicates that 

SOME’ I ME', MRTI1RUS1 LAWS FLLSTi-ATt CONSliMEN L.EIFAtE. 

Falsehood 54: "lock fast ms relume": Ar tl.inly veiled attempi to 

SHORT-CHANGE THE INDIVIDUAL WITH THE MOST IRPRESSIVE LEGAL RESUME 
If: THE COUNTRY. 

Falsehood 55: "consistently i.ulet against the interests of the 
PEOPLE", OUTH6HT LIE. SEE 22 AND 56 ABOVE. 

Falsehood 56: "against our. Constitutional mchts": Outright lie. 
See 22 AND 36 AEOVE, JLST FDR STARTERS, 

Falsehood 57: "his extremist philosophy"; Hallow nare-calling. 

The real guestion is vrho is "extreme." A fair fieaoinc points more 
to Judge Fork's critics than to him. 



3144 


Falsehood 58: "views so extreme": Repeat a lie often enough , 

r,.L :n,c; E I-I.ILE ' , (1 ■: in'- ‘ ’ : *.U't III' 5 LAV 

>t > IF GI . T c.t. FUlE i Ft t oF ■ C i Ai.Y Cu t r111 LfT Ft'" 5 F NL “ ij DO V . T r 
ILAU-MAi*. JJ.F, 


PALLEHOCF' DC: ".EFACKACE": FLPCi ( (E FAS TOC f :e lC. U/ i <E 

INSINUATION T FAT HE IE CHANCING. &LTF; LACK.' cE ( (.1 F.t L T . 

Falsehood 6’: "Bulk HIMSELF IE CHANGING MS inage": Tfiie is 

£ IF.PL Y FALSE. f'ANY CF THE VIEWS vUt.C.E CORK IS ILFL1EC TC HAVE 

CNANCEC, INCLUDING HIS VIEWS ON EGLAL FLCTECT ION AND I.ESPECT FCF 
CI'l'UriAL IM EM 101. j- NEFF. FIRST ARTICULATED IN 1571. 

Falsehood 62: "Boi.f . . . lobbying tfe Senate and the media": 
Ironic change. The host expensive LOBE"! inc campaign ever launched 

AGAINST A vDDltlAL CANDIDATE ACCUSES THE JUDGE OF LCEETING. In 
FACT, FIE hAS DONE NOTHING BUT APPEAR, AT THE REQUEST CF SENATORS, 
TO ANSW'Ei THEIR GUEST IONS. 

Falsehood 65: "People foi the American Kay": Hypoci itical. In a 

SPEECFi BEFORE THE FEDERALIST SOCIETY MONTHS BEFORE THE NOMINATION, 
Tony Pgdesta, director of PFTAk, answered tfiat he would support 
Antonin Scalia, Robert Eoitk, ok Flank Eastef,brook, if nominated 
for the Supreme Court. 



3145 


r.’._. l ; (. C i • 1 . WE! m''!. .L ;■* i . L.-l V»‘l. I t V ’ : r C, • : >1 

h t;i e< ", icN i-r /h.r-KAr valMs 1 u um.t.r it.t ill i r tlc> my aw. 

' l.mENL'ENLE LF (HE JUE'C’AiY L I t L A PCLIT.r.Al CANPA'LN' 

rAL'TK.U <'f. ’VALUE F-EVF' F Aft L. A HOU-Ei. (F.All FILE": JULUjE tCf.k 
LULLIES F't-Ef lf>F VALUES. P.E IF Ml 1 HE I i. ENEMY. 

FALSEHOOD 66: "SOPFWT L.Li ACTION FUND": FINALLY TEE MOTIVES AFF. 
ClLAl.. FUNCEAISIHG. IT CAN f.E PFCF I TABLE TO CF<EATE A "MCNF.'l Ef " 
Af.r TEiEN CAST HOF SELF AS TE>t ONLY KM GHT -- ALBEIT AN IN.PEC.U.K LS 
KMUIT -- ABLE TC f iL THE LANE OF TFIE SLCUF.CE . 

FALSEHOOD 67: "bOF K VS. TFiL PEOPLE”: SEE 1 ABOVE. 



3146 


Senator Hatch. What I would like to do is just go through a few 
of them. Take number 21, where it says, quote: “Use of contracep¬ 
tives by married couples a punishable crime.” Unquote. Clearly put 
in there to be inflammatory, because this leaves the impression 
that married couples were convicted of such a crime. 

The Chairman. Excuse me, Senator. Do you have a copy of these, 
so I can take a look while you are going- 

Senator Hatch. Yes. I do. 

The Chairman. Thanks, because I cannot see yours. 

Senator Hatch. I sure do. We will give you that copy. 

The Chairman. Thanks. 

Senator Hatch. Now Judge Bork—as he mentioned—he said that 
this “nutty”—as he described it—Connecticut statute was never 
used at all to punish any married couple for the use of contracep¬ 
tives. 

Take number 22 here. It says: “Turn back the clock on civil 
rights.” Big print. Actually, it is unfounded slander, libel in this 
case. Judge Bork has advanced the cause of civil rights in all of his 
public-service capacities. 

He has never, quote, “turned back the clock,” unquote. 

He has advocated, as a Solicitor General, or he has rendered as a 
judge a judicial decision on the D.C. Circuit Court of Appeals. He 
has never done anything that was less sympathetic to the minority 
groups of this country, or female plaintiffs than a majority of the 
Supreme Court itself. 

And as Solicitor General, Judge Bork won several significant ad¬ 
vances for civil rights, including prohibition of private, discrimina¬ 
tory contracts in Runyon v. McCrary, and redistricting to enhance 
minority voting strength in the United Jewish v. Carey case. 

You could just go on to—let me just go to a couple more. Twenty- 
seven. Poll taxes, which is right down here. 

Quote. “Poll taxes, to keep minorities from voting.” Unquote. 

Now that is incorrect. This misstates the Supreme Court case in 
the question. The Court, in Harper, pointedly mentions that the 
case involved no evidence of racial discrimination. 

Falsehood 28. This is a grossly unfair characterization. Again, it 
is the same as the above. Poll taxes are to keep minorities from 
voting and that he supported those. 

Judge Bork stated that if the Harper decision had involved racial 
discrimination, he would not have criticized it. 

He would have voted to strike down the discriminatory poll tax. 

Number 29. Literacy tests. It says, quote: “Literacy tests to keep 
minorities from voting.” Unquote. Again, incorrect. 

This misstates the Supreme Court case in question. The case in 
Katzenbach pointedly mentions that the case involved no evidence 
of racial discrimination in that case. 

Falsehood 30. This is, again, a grossly unfair characterization. 
Judge Bork stated that if the Katzenbach decision had involved 
racial discrimination he would not have criticized it. 

He would have voted to strike down any discriminatory literacy 
test. Go to number 39. There are so many here, that I just have to 
pick and choose. 



3147 


It says here, it says, “Falsehood 39: In 14 out of 14 cases”—that 
was the quote. This is selective statistics. By selecting the right 14 
cases you can get a 100 percent for any proposition. 

What this question ought to raise is who selected the 14 cases, 
not the 100 percent conclusion. Let me just go to two more and 
then I will quit. 

Falsehood 63. 

Senator Hefijn. Would you point that over here toward the 
other side. 

Senator Leahy. Show it to Judge Heflin, too, Orrin. 

Senator Hatch. I would be glad to do it. 

Falsehood number 63. It is, quote: “People For The American 
Way,” unquote. 

Well, in a speech before The Federalist Society just months 
before the nomination, Tony Podesta, who was the director of the 
PFTAW—People For The American Way—the acronym—answered 
that he would support Antonin Scalia, Robert Bork, or Frank Eas- 
terbrook, if nominated to the Supreme Court. Now this was the 
head of this organization, just a few months before Robert Bork 
was nominated. 

Just let me give you one last one. That is number 66 right here, 
where it really comes down to why this ad was put in to begin 
with. 

It says, in number 66: “And support our action fund. Robert Bork 
versus the People. Don’t let it reach the Supreme Court.” Treating 
him like a nit. And to make a long story short, you can see what 
the motives are. The motives are very clear. They are fund-raising, 
and I think they have done it through the most distortionate ad I 
have seen in a long time. 

Now I have to admit that conservatives occasionally put out ads 
like this, in fact more than occasionally, just like liberals; but they 
ought to be called what they are. 

But that is one reason why people in this country may have had 
some questions about Judge Bork because they see things like this 
and think that because it appears in the newspaper it may be 
right. 

Let me just end with these thoughts, and then I will give up the 
floor. 

The Chairman. Do you want me to hold that for you? 

Senator Hatch. Yes, if you want to. It is great to have a Chair¬ 
man who is fair. That is all I can say. 

Senator Leahy. Are we under the 15-minute rule now? 

The Chairman. The Senator has time. 

Senator Hatch. Well, I might mention that Senator Kennedy 
took 20, and others have taken 10. I am just going to take about 8. 

In conclusion, I only regret that this serious decision of deciding 
a Supreme Court nominee is encumbered by the crassest of politi¬ 
cal tricks and approaches. 

The courts have always been our most nonpolitical branch of 
government, and the judges have always made decisions without 
worrying about their opinions appearing in this kind of garbage, 
and that is what it is. This kind of tabloid journalism. 



3148 


If judges have to start worrying about politics, appearances, and 
misleading headlines, what is going to happen to justice in this 
country? 

Now that worries me, and it ought to worry everybody else. This 
kind of political tactic, accompanied by fund-raising, lobbying, and 
misleading distortion has no place in this constitutional process. 

I look at what the continual raising of Watergate, and particular¬ 
ly this issue, as being in the same category as this ad. And the 
reason I do is because you have more than adequately explained it 
time after time after time, you have done it here today, and, frank¬ 
ly, the end result of what Judge Bork did then, as Acting Attorney 
Genera], the end result was to get Leon Jaworski who did, I think, 
about as good a job as anybody could have done in resolving that 
very, very difficult set of problems. 

Do you have any comment about that? 

Mr. Richardson. Thank you, Senator Hatch. May I make one 
brief comment, Mr. Chairman? 

The Chairman. You can comment on all 67 points, if you want. 
[Laughter.] 

Mr. Richardson. Let me give them to you. 

The Chairman. I must say, in my time here, I have never seen 
such a distinguished prop as you, sir, being used in this, but 
please- 

Senator Hatch. I have never seen such a terrible ad. 

Mr. Richardson. I would be far more disturbed by the ad you 
have just exhibited, Senator Hatch, were it not for the fact that the 
question of confirmation of Judge Bork is not being entrusted to a 
popular referendum, but to the Senate of the United States, and I 
have such confidence in the Senate of the United States, that I am 
sure all of its distinguished Members will study the hearings, will 
give due weight to the testimony of Judge Bork which of course ex¬ 
plodes most of those allegations, and will therefore, having weighed 
the merits, conclude that notwithstanding adventitious propaganda 
from the outside, he deserves the advice and consent of the Senate. 

Senator Hatch. I hope you are right, sir. I hope you are right. 

The Chairman. Before I yield to the Senator from New Hamp¬ 
shire I will just point out one fact. 

Notwithstanding the ads, which we will have plenty of time to 
debate, I am sure, I would point out that up until the public 
became bored with these hearings, which I guess was about the 
same time we became bored with them, the beginning of this- 

Mr. Richardson. I am sorry I did not get here in their heyday. 

The Chairman. The fact of the matter is, millions of people were 
able to watch for themselves, firsthand, Judge Bork testifying. 

I suspect many millions more than read these ads. And I would 
also point out that during this period there was a lot of coverage in 
the press, quote, “the free press,” beyond these ads. So notwith¬ 
standing the fact they may or may not have an impact, I would 
suggest that their impact, to the extent they had any, pales by 
comparison to this being televised live, televised late, and televised 
in part by all the networks, by everyone for the past 10 days. 

And Judge Bork had an opportunity to sit for 4 days, or there¬ 
abouts, and make his case to the American public. 



3149 


So to the extent that the public has reacted or has not reacted, I 
would suggest that it would be giving much too much credit to the 
paid advertising media, to suggest that the reaction was a conse¬ 
quence of merely ads, correct or incorrect. 

At any rate, having said that, let me yield to our—we have two 
more questioners, I beg your pardon—to the Senator from New 
Hampshire, and suggest that we will end for an hour- 

Senator Leahy. You mean the Senator from Vermont, first, don’t 
you? 

The Chairman. I am sorry. I beg your pardon. The Senator from 
Vermont, first. I am moving from my right to my left. After the 
next two questioners, we will recess, I would suspect, until 2:15. 

We will try to recess for one hour. 

Senator Humphrey. Mr. Chairman, excuse the interruption, but 
there are three members waiting for- 

The Chairman. Oh, I am sorry. I did not realize you have not— 
as I have throughout, every Senator will have an opportunity to 
question, but I am just telling you that the next panel can go to 
lunch. 

Those waiting, you can go to lunch, and it will be approximately 
an hour after the last Senator questions Attorney General Richard¬ 
son, that we will reconvene. 

The Senator from Vermont. Then the Senator from Wyoming, 
the Senator from New Hampshire, and any other Senator who 
wishes to come back and speak. 

Senator Leahy. Thank you, Mr. Chairman. I will not go down 
through a long defense of the People For The American Way. Sena¬ 
tor Hatch has an inimitable way of going after them. They are well 
able to speak for themselves, and I am sure will. 

I will note only this, however. That there has been unparalleled 
lobbying on both sides, and there has been fund-raising done by 
those for Judge Bork, and those against Judge Bork. I have stated 
before how I feel about this. I have also noted that I have declined 
all invitations to meet with the professional lobbying groups for 
him, or against him. 

We are now weighing our preprinted postcards and letters for 
and against him. I mean that literally. We weigh them. We do not 
read them, but weigh them. What I am paying attention to are 
those letters where people have actually written their own, from 
the State of Vermont, for him, and against him, and any individual 
in the State of Vermont who has sought me out in my weekends up 
there, for or against him, speaking as an individual, I have listened 
to them. 

But I agree, as our distinguished witness, Mr. Richardson, has 
said, and as the distinguished Chairman has said—we will make up 
our minds, as members of this committee, based on what we hear 
in this committee room. 

Judge Bork spoke at unprecedented length and unprecedented 
detail. That, actually, will influence our thinking, I would hope, of 
individual Senators, more than all all other witnesses put together, 
because after all, that is the most important of all of the witnesses. 

I would also note that in that regard—it is my own personal feel¬ 
ing—I would hope when we finish, that each one of us will an¬ 
nounce how we will vote, and vote, and announce our reasons for 



3150 


it, because I think that is important to the whole Senate. But that 
is an individual thing. 

The most important thing is that it has been also announced 
that this matter will be debated on the floor of the Senate. Every 
single Senator will have a chance to express his, or her view, and 
again, it is the views of the one hundred, based on what they have 
heard, actually, from the witnesses, who will carry the day one way 
or the other, not what the individual lobbying groups do. 

Now, Mr. Richardson, in response to a request from this commit¬ 
tee, the Justice Department made available a great many docu¬ 
ments from the Watergate period. 

One of these was a letter dated August 13th from Philip Laco- 
vara, who was then counsel to the Special Prosecutor, Archibald 
Cox. Let me just read the pertinent paragraph. It was to then-Solic- 
itor General Bork. 

He says: “Since I understand that the Attorney General has 
asked you to help coordinate the positions being taken by various 
units of the Department of Justice on the issue of executive privi¬ 
lege, you will be interested in the enclosed memorandum filed 
today dealing with that subject in the context of a grand-jury sub¬ 
poena addressed to the President." 

Now this was years ago, I realize, but do you recall asking then- 
Solicitor General Bork to coordinate the positions taken by the Jus¬ 
tice Department on the issue of executive privilege? 

Mr. Richardson. I have a general recollection of it. Senator 
Leahy. I certainly would not have remembered that letter. 

Senator Leahy. No, nor I expect that particular one I did note on 
the diaries, the log kept in your office. As Attorney General, you 
had a meeting on August 15 with Solicitor General Bork and Mr. 
Lacovara, as noted, to discuss executive privilege. 

Again, I am not sure I would remember a particular meeting 
that I had on August 15th of this year, to say nothing about 
August 15th back then. 

But does that in any way seem right? I mean, do you- 

Mr. Richardson. Yes. It certainly is consistent with the kind of 
approach I would have taken to try to assure that the left hand 
knew what the right hand was doing, and that we were, so far as 
possible, applying consistent principles to the positions we took on 
executive privilege or, for that matter, most anything else. 

I was at that very time also trying to come up with ways of as¬ 
suring consistency in the Department’s approaches to the govern¬ 
ment’s responsibilities toward information, and so I do not know— 
there certainly would have been situations in which our responsi¬ 
bilities as lawyers, on one side of a case, might be- 

Senator Leahy. But calling in Solicitor General Bork to coordi¬ 
nate the work on executive privilege, in August of 1973, was that 
because the dispute over the release of the White House tapes was 
already beginning to bubble to the surface? 

Mr. Richardson. Oh, yes. Well, that of course had been a prob¬ 
lem. I forget when the subpoenaed tapes first arose. But the ques¬ 
tion in general, of the availability to the Special Prosecutor of the 
President’s personal memoranda, documents, things like this, was a 
problem that had arisen very early on in my own conversations 
with the President's counsel, Fred Buzhardt. 



3151 


And by August, I was beginning to think of myself as—in Bran- 
deis’s phrase—the lawyer for the situation. I was neither the Spe¬ 
cial Prosecutor nor counsel to the President, and kind of a bridge, 
trying to assure that the whole process was conducted with fairness 
and consistency. 

Senator Leahy. So that my final question is that then it would 
be fair to say that Judge Bork was well aware, in August, of the 
brewing constitutional dispute—certainly well aware of the brew¬ 
ing constitutional dispute over the tapes before your resignation as 
Attorney General on October 20th, 1973? 

Mr. Richardson. Well, I am sure he was. He had no direct role 
in any of that. But I had learned already to have great respect for 
him as a lawyer, especially in dealing with constitutional issues. 

I had worked very closely with him, or was then working very 
closely with him on the issues presented by the Agnew case, which 
I might add, from my point of view, was a substantially more diffi¬ 
cult problem than anything I had to deal with in Watergate. 

And so I am sure I called on him just because I thought that 
these were positions in which—of course as you well know, the So¬ 
licitor General ends up at some eventual stage deciding what shall 
be the position of the United States in litigation in the courts of 
appeals. 

And so he has a concern, then, for the avoidance of inconsisten¬ 
cy, if possible. So it seemed like an appropriate way to use his ex¬ 
pertise and his role. 

Senator Leahy. Thank you, Mr. Chairman, Mr. Richardson. It is 
good to see you back here in these halls. Good to see Mrs. Richard¬ 
son here, too. Thank you. 

Mr. Richardson, llianks very much, Senator. 

The Chairman. The Senator from Wyoming. 

Senator Simpson. Thank you, Mr. Chairman, and it is great to 
see you here today, Elliot Richardson, and always a great pleasure 
to hear you speak and hear you state yourself with such clarity as 
you do. You are a superb citizen, and you have been—everything 
that your country asked of you, you performed. You have done 
that, and you have done it well. I admire all of those things in you. 
Indeed, whenever you were asked, you responded. 

A particularly powerful statement, and particularly page four, 
where it says: “In my judgment, the clarification of his views has 
now emerged as entitled to be taken at face value. To treat it oth¬ 
erwise would be both insulting and implausible; insulting because 
no foundation whatsoever has been laid for impugning his fidelity 
to the truth.” Boy, that says it all. And that is what he said here. 
He said he would do what he would do, and he was here for 32 
hours, plus, saying that, under oath, and under the most compel¬ 
ling of reasons, when presented with the accusation of some kind of 
confirmation conversion, he said he would not allow himself to be 
disgraced in history. 

That is what he said. That is the most compelling of personal 
views. It is the marvelous ability which keeps me going, hopefully 
forever in this arena—not forever. I do not want to stick around 
this place that long. It is a fascinating place to work. 



3152 


But I think we can count, that when a mein is under oath, and 
says what he says, unless there is some background, that we take it 
as truth. 

And then to have these rather—and I say there is a touch of ar¬ 
rogance when they come to speak about what he said, or that he 
did not mean it. 

Boy, that is effrontery, that is arrogance personified in my mind. 
And so he has said what he has said, and there is no reason at all 
to believe that that would not be the case. 

What Senator Hatch has shared with you, with us, is the kind of 
guff that we have had to struggle through in this confirmation, and 
that is the written part. 

Gregory Peck is doing some heavy hitting out there that is awe¬ 
some m its distortion, and we will just have to watch that. 

But I think, you know, just for me, I think that they have gone 
too far, and as we get to the balance of 86 other Senators partici¬ 
pating in this remarkable exercise, we are going to find the 
thoughtful centrists who will be able to add the real essence to the 
debate that perhaps the fourteen of us do not bring to it. 

And in the course of it they are going to say, I read that, and 
then, I heard that debate and they lied. And that is the way it 
works in America. And then they are going to generate to the un¬ 
derdog, the guy who got smacked in the chops with a bunch of total 
phoney-baloney accusations, that do not fit anything. Well, enough 
of that. 

I want to say, that in the midst of all this, and the Watergate 
issue—you know—really, you have hopefully laid that to rest. It 
should nave been laid to rest many years ago. 

Two hearings were held here with this man who had participated 
in this situation, and nothing further ever came of it. And then to 
bring that, you know, gasping cadaver back from the edge of the 
final tank is really a gross activity in itself. 

But now a kind word, here and there. Do you remember I said 
yesterday, Mr. Chairman, and you joined me in talking about the 
right of privacy, and I cited that publication and you had some 
feelings of your own. 

I said, jocularly, that my friend Mort and Jerry ought to get 
aboard and help on that, and typical of them—and I have enjoyed 
them both thoroughly. What fun to bounce brains with them. Mort 
Halperin and Jerry Berman. And they were a great assistance to 
me in many ways in the immigration activity, and they were de¬ 
tractors, too, but always up front. 

I want to place in the record a letter from the American Civil 
Liberties Union to the editor of that paper I spoke of, sharing their 
displeasure, and the fact that they were appalled that such a list 
was made available to the reporter, that they obtained a video list, 
and the discussion of Judge Bork’s character based upon the 
movies he watches at home, and the fact that it was leaked. 

“We believe it wholly unethical to make public such a list.” They 
believe the Bill of Rights grants people a protectable privacy right 
in personal information. As Judge Bell said, the right to be left 
alone. 

And again, with the enormous third-party information reservoirs 
that are in the land. But in any event, it is a very fine letter, and 



3153 


they do not condone that, and “Judge Bork is entitled to live cer¬ 
tain parts of his life outside of the public eye, and not even our cu¬ 
riosity about him justifies this intrusion into his personal affairs.” 

It is signed by Mort Halperin, the director, and Jerry Berman, 
chief legislative counsel. 

I want to commend them. That is the ACLU I knew when I was 
a member of it many years ago, and I got out only because of the 
Skokie, Illinois situation. Many did. They do good things, and they 
do some things I do not agree with. 

But that is a remarkable statement and I ask that it be put in 
the record. 

The Chairman. Without objection, it will be placed in the record. 

[Letter follows:] 



3154 



WGMMGTOS OfWCS 


HHMORAUDUH 

TO: Senator Alan K. Simpson 

FROM: Morton flalperin. Director 

Jerry Berman, Chief Legislative Counsel 
American Civil Liberties Union, Washington Office 

DATE: September 28, 1987 

RE: Letter to the editor of City Paper 


122 itaryWrtd NE 

toMhnpon. OC 20003 
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ttaMmai 

132 »M 43nj 6»Mt 
'**, NY MOM 

(212) 

Hannan Doraan 
maancMr 


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OECUtTVt 01ABTDI* 

Gunor Hofttvs Hww 

CM* 

iOWlSOWr cowfc L 


We thought you might be interested in this letter, which we 
sent to City Paper today* 



3155 


AUCACAN crv*. UBtHtTES UNO* 


W^WWiTDN OFFICE 


****** A«M NC 
DC 20002 
(202) J44-1681 


September 28,1907 

Editor, City Paper 
917 6th street, N.w. 

Washington, D.c. 20001 
Attn: Jack Shafer 

Dear Editor, City Paper: 

In Cltv Paper's cover story of September 24, you 
announced that you had obtained from a local video store a 
list of videos rented by Judge Boric and his family. 

Your article included the video list and a discussion of 
Judge Boric's character based on the movies he vatches at home. 

You claimed that an employee of the video store "leaked* the 
list to your reporter. 

The American Civil Liberties Union (ACLU) is appalled 
that such a list was made available to your reporter. We believe 
that it was wholly unethical for the video store to make public 
Judge Bork's video rental list, particularly in light of the 
fact that Judge Bork did not consent to the disclosure. 

The ACLU believes that the Bill of Rights grants people a 
protectable privacy right in personal information. However, we 
live in a society in which an enormous quantity and variety of 
personal information is held in the hands of third parties such 
as banks, credit and insurance companies, schools. We are 
virtually unable to avoid giving over information about ourselves 
in exchange for goods and services. 

Although there are few laws which prohibit private third parties 
from disclosing personal information, the right of people to maintain 
some control over their lives should be respected by those with whom 
they do business. 


Mauna HMCkwrbpn 
(ElMaM Gnwt 

'*# 1 . NY MB* 



iujow. A0in»0"r COlwC'l. 


The nomination of Judge Robert Bork to the United States 
Supreme Court is one of the most serious issues confronting our 
nation today. But we cannot condone the rental list "leak* ee a 
legitimate means of determining Bork'a character, just as ve 
would not » condone the breaking into his home to find out what 
books he reads. Judge Bork is entitled to live certain parts 
of his life outside of the public eye, and not even our 
curiosity about him justifies this intrusion into his private 
affairs. 

Sincerely, 




Horton Halperin 
Director 

Jerry Berman 

Chief Legislative Counsel 


MH/JB/cm 


88-374 0-89-15 



3156 


The Chairman. Anything else? 

Senator Simpson. No, Mr. Chairman. I would just ask one ques¬ 
tion, which is: What does a vacated order mean, Elliot Richardson? 

Mr. Richardson. It means an order that has been rescinded, is of 
no further force or effect. 

Senator Simpson. And just scrubbed? 

Mr. Richardson. Scrubbed. Yes. Good word. 

Senator Simpson. Nothing to it. Void. That is what happened to 
Judge Gesell’s order, and we all know that, but sometimes I think 
it is good to hear others say what vacating an order means, and 
have you ever seen one vacated by the prevailing party, like that 
one? I mean, they requested it be vacated. 

Mr. Richardson. The case, as I understand it, was regarded as 
moot in the court of appeals, and so that meant there was no case 
or controversy to be addressed under Article III of the Constitution. 

So the case was then treated as if it had never been. 

Senator Simpson. Thank you so much, and thank you, Mr. Chair¬ 
man, for your courtesy. 

The Chairman. Thank you. Senator Grassley. 

Senator Grassley. Mr. Attorney General, I thank you for coming 
here and telling us about Judge Bork, and bringing a breath of 
fresh air to these hearings, and a fairness that I think this commit¬ 
tee ought to have as our example. 

We have heard an awful lot today, and I guess every day, about 
whether or not Judge Bork is outside of the mainstream, I think 
that some of those making that criticism do not know the differ¬ 
ence between mainstream and the jet stream, but that is beside the 
point. 

I want your view, whether or not you consider Judge Bork out¬ 
side the mainstream. 

Mr. Richardson. I certainly do not consider him outside the 
mainstream. I do not particularly like the phrase, by the way. 

To me, a better way of looking at it is to picture positions taken 
by judges and constitutional authorities as being distributed along 
a bell curve, and the ones most often expressed would be reflected 
by the peak of the bell curve, and the extreme positions that have 
very little support, or recognition anywhere, would be at the very 
far ends of the bell curve. 

And you could decide at what point on the slope you would disre¬ 
gard, or consider actually disqualifying, in the case of a Supreme 
Court nomination, positions outside that point. 

I am satisfied, on the basis of Judge Bork’s testimony, that his 
positions fall well within the range of those that have to be treated 
with respect, and that are entitled to be represented, as I have 
said, on the Court. 

Any other member of the Court who cannot handle the quality of 
the reasoning he would bring to bear in support of those positions 
in a given case should not be on the Court, him, or herself. 

It is a process of give and take, and what he will bring is a point 
of view, of philosophy, and a depth of knowledge that deserves to 
be on the Court. 

As I have said, even though I might find myself in disagreement 
with him, it would be always with appreciation of the intelligence 
with which he had presented and advocated his point of view. 



3157 


Senator Grassley. To whom did you make the promise not to 
fire the Special Prosecutor? 

Mr. Richardson. The Judiciary Committee of the United States 
Senate, and to Cox himself. 

Senator Grassley. Judge Bork testified before this committee, 
that he believes you took the right position. 

What was the position of Deputy Attorney General Ruckelshaus 
regarding the dismissal of Mr. Cox? 

Mr. Richardson. His position and mine were essentially the 
same, both on the issue of Cox’s entitlement to reject the conditions 
imposed on his access to tapes by President Nixon. 

We also were in the same position toward my commitment to 
this committee, although Bill Ruckelshaus did not come on board 
as my deputy until after that. He was my deputy in the fullest 
sense of the word. He was a true alter ego, and so he felt, and I 
felt, that he shared whatever constraints I was subject to myself. 

Senator Grassley. Do you believe that the discharge of the spe¬ 
cial prosecutor in any way hampered the investigation or the pros¬ 
ecutions of the Watergate Special Prosecutor Force? 

Mr. Richardson. No. And I think that that answer is- 

Senator Grassley. You know what I hope comes out of this hear¬ 
ing? I hope that your testimony puts to rest the non-issue of the 
Watergate matter and puts it to rest once and for all. 

Mr. Richardson. I hope so, Senator. Thank you. 

Senator Grassley. Thank you very much for your time. 

The Chairman. Senator Humphrey. 

Senator Humphrey. Thank you, Mr. Chairman. 

Mr. Attorney General, welcome. The Chairman correctly noted 
that the American people have grown bored with these hearings. It 
is little wonder they should grow bored when we go back 14 years 
to an event that has been aired and re-aired and re-re-aired many, 
many times since then. It is little wonder the American people 
would grow bored with this obviously partisan proceeding when the 
opponents raise once again charges—that is, those in connection 
with the Cox affair—when the opponents raise charges in connec¬ 
tion with the Cox affair that were thoroughly aired, which were 
raised and thoroughly aired just 5 years ago in connection with the 
confirmation of Robert Bork to the D.C. Circuit Court of Appeals. 
These charges connected with the dismissal of Archibald Cox were 
raised in 1982, considered by this committee, presumably consid¬ 
ered by all Senators, and dismissed if you look at the vote, which 
was unanimous in favor of his confirmation. 

That these charges would be dredged up once again to me shows 
the opponents will stoop to any level to defeat the nominee. And I 
want to make a prediction that I think was implicit in what some 
of my colleagues said a moment ago: that this junk is going to 
backfire. The opponents have gone too far. We saw it last night 
when they dragged a hapless witness before us who by innuendo 
accused Judge Bork of anti-Semitism and insensitivity to the con¬ 
cerns of various ethnic groups. We see it in the raising once again 
of these Watergate charges. 

But just for the record, since you have been kind enough to come 
before us, Mr. Attorney General, would you answer this in what¬ 
ever fashion you wish. In connection with the dismissal of Archi- 



3158 


bald Cox and ultimately the replacement of Mr. Cox with Leon Ja- 
worski, did Robert Bork in any way act unethically? 

Mr. Richardson. No. Clearly not, in my view. 

Could I add one brief comment? I must say I am struck, to use a 
neutral word, by the extent to which the question of boredom or 
not is becoming pertinent to the deliberations of the United States 
Senate. It implies almost that you exist in order to entertain. 

I am sure, Mr. Chairman, that is not the view that you hold or 
any of your colleagues hold. It is not, then, the question of whether 
it is boring or not; it is immaterial. The question is whether or not 
the testimony you are receiving is material. 

The Chairman. And I think your testimony is material, and if 
boredom were the measure of our worth of our efforts here, it 
would be not worth very much. Not only here but in the Senate, 
much of the hardest work and most important work is boring. 

Mr. Richardson. Exactly. 

The Chairman. The point I was making is we have an obligation 
to do this job. I have, as Chair, tried to do it as fairly and thorough¬ 
ly as possible. Your testimony has added greatly to our delibera¬ 
tion. 

Are there more questions? 

Senator Humphrey. I would hope so. 

The Chairman. I am sorry. 

Senator Humphrey. I have only used about a minute of my time. 
No more minutes have elapsed. 

The Chairman. 1 beg your pardon. You can have as much time 
as you want. 

Senator Humphrey. Thank you. 

The Chairman. Please continue. 

Senator Humphrey. To try to get back on track, we were talking 
about the conduct of Robert Bork in the dismissal of Archibald Cox 
and the replacement of Cox with Leon Jaworski. 

You find nothing unethical in any way in the conduct of Robert 
Bork in that matter; is that correct? 

Mr. Richardson. That is correct, Senator Humphrey. 

Senator Humphrey. Do you suppose that there ought to be a 
higher standard of ethical conduct required of the nominee to the 
Supreme Court than the standard of ethical conduct required of a 
nominee to the circuit court? 

Mr. Richardson. No. I do not think ethical standards vary with 
the level of the court. Indeed, given observance of rather basic 
standards on the part of any judge, a judge does not spend much of 
his time worrying about ethics. He has got cases to decide. 

Senator Humphrey. The point I was trying to make is that if the 
Senate took into account, as it should have. Judge Bork’s ethics, 
Robert Bork’s ethics in the Cox affair, when he came before this 
committee as a nominee to the circuit court, if the Senate took that 
into account, as I am sure it did, and found that his standards of 
ethics were without question such that it confirmed him to the D.C. 
Circuit Court of Appeals, then why in the world are we hearing 
these charges once again that Bork’s conduct was unethical? We 
have already decided that question, and that we should resurrect 
that question and that charge to scoop up another handful of that 



3159 


mud and again to place the nominee in jeopardy a second time I 
think is not flattering to the opponents of the nominee? 

Senator Simpson. What was your comment? Excuse me. 

Mr. Richardson. I was going to say, Senator, you asked why is 
this happening. I can only guess that there are people who oppose 
the nomination and will use anything they can lay their hands on 
to try to block it. 

Senator Humphrey. Are you suggesting that has happened? 

Mr. Richardson. Yes, clearly. Senator Hatch has already given 
us one example of that, and I think you are correct in saying that 
there is no basis for questioning Judge Bork’s integrity or his com¬ 
mitment to the highest standards of ethical conduct. 

I agree that this was, as it should have been, an issue in his con¬ 
firmation for the Court of Appeals for the District of Columbia, and 
I do not believe that there is any legitimate question on that score 
before this committee or the Senate as a whole. 

Senator Humphrey. Thank you. One last question, Mr. Chair¬ 
man. 

In your testimony, Mr. Attorney General, you say that, “I am 
also satisfied that to portray him as bent on enshrining his every 
past utterance in some future majority opinion is worse than a 
caricature; it is a distortion.” 

Are you suggesting likewise that the opponents have caricatured 
Robert Bork and distorted his- 

Mr. Richardson. Yes, I am suggesting that. I am saying that 
they continue to attack his positions as if he had not testified. They 
have been willing to extract from whatever he said over a long 
career as a professor, commentator, statements that he has said do 
not reflect his present views or, as the case may be, do not reflect 
the approach he would take to his responsibilities as a Supreme 
Court Justice. 

I think, as I have said, that when he declares himself in that 
manner, his statements should be believed. As I go on to say, I 
think that not to treat them as believable, not to accept them, is 
both insulting to Judge Bork and, in any event, not plausible, be¬ 
cause it is far more plausible in all the circumstances that what he 
is telling you now is, in fact, a clear, accurate and conscientious de¬ 
piction of his actual views. 

It is, as I say, natural that these views should have been modi¬ 
fied in the course of a lifetime of hard thought about these issues 
of constitutional law. It is also true that an individual faced with 
the responsibilities of serving on the Court will look at these ques¬ 
tions differently than he would have looked at them as a professor. 

One of my favorite axioms was one I learned when I was serving 
as Assistant Secretary of Health, Education and Welfare under 
President Eisenhower. We had a very senior civil servant in the de¬ 
partment then named Rufus Miles. Rufus Miles, if he wasn’t the 
author of Miles' Law, is the man I have always associated with 
what I call Miles’ Law. It goes: How you stand depends on where 
you sit. And you are sitting in a different place when you are lec¬ 
turing to students or writing provocative Law Review articles than 
when you are sitting—when you are staring at the prospect of 
voting on matters of vital concern to the American people in the 
capacity of a Supreme Court Justice of the United States. 



3160 


Senator Humphrey. Well said. T han k you, sir. 

The Chairman. General, do you think that we should not consid¬ 
er the views that he has not changed during his testimony. 

Mr. Richardson. No, of course not. 

The Chairman. And I assume you would not argue with the 
proposition that, notwithstanding the fact he may firmly hold the 
views he has now stated, that if there is a pattern of significant 
swings and shifts in those views over the years, notwithstanding he 
firmly holds them now, they very well might change again. We 
should look at the past as prologue, should we not? 

Mr. Richardson. I think you should look at the past as the pro¬ 
logue. No one could quarrel with that as a general observation. But 
I also think that the best evidence you have as to his views is the 
testimony he has given here. 

May I make one more general observation? I know it is getting 
late, but the reason I quoted Judge Hand and cited Judge Hand’s 
position on the Bill of Rights, this little book, is that the question 
of the judicial function is the hard question. 

The Chairman. That is right. 

Mr. Richardson. My old boss, Felix Frankfurter, was vilified in 
his day by his former liberal friends because they thought he had 
switched his position simply because, in fact, what he had done was 
to exercise restraint in using the power of the Court to strike down 
challenged actions when his liberal friends would have liked to see 
him do that. 

I certainly became sensitive then to the fact that the question of 
how far a court should go in disturbing the actions of State govern¬ 
ments or the Congress of the United States or the executive branch 
is a question that is never going to be settled in a static manner. 
And no one has thought harder about that kind of problem among 
living judges than Robert Bork. His analysis of it, his point of view 
toward it, in my view, belongs on the Court. 

If I were there too, as I said, I might end up disagreeing with 
him a lot of the time, but I would not say that he should not be 
there for that reason. You are dealing with a question of disqualifi¬ 
cation. The burden of proof at this point, it seems to me, is on 
showing that something in his record, something in his character, 
something in his positions, forces you to the conclusion that this 
man does not belong on the Court. I do not see how that conclusion 
can be reached on this record. 

The Chairman. Well, it seems to me that you and I, I clearly un¬ 
derstand our areas of agreement, and I now clearly understand our 
areas of disagreement The fact of the matter is I believe the role 
of the Senate and the Senator in making a judgment of who should 
or should not be on the Court is not limited to merely whether or 
not the character is sufficient. Your judgment as a sitting Senator, 
were you to be here, would be that that view, although you dis¬ 
agree with it on a judicial function, is one that should be represent¬ 
ed on the Court. My view is that it should not be represented on 
the Court. I doubt whether you would question my right to hold 
that view or my right as a Senator to make that judgment. 

Mr. Richardson. Clearly not. 

The Chairman. I thank you very, very much. You really have 
enlightened these hearings. It was a pleasure having you here, and 



3161 


we will recess until 2:30 p.m., at which time the next panel will 
come forward. 

[Whereupon, at 1:31 p.m., the committee recessed, to reconvene 
at 2:30 p.m., the same day.] 

AFTERNOON SESSION 

Senator Metzenbaum. The hearing will come to order. 

Before we move on to the next regularly scheduled panel, let me 
introduce three distinguished Members of Congress. First, Con¬ 
gressman John Conyers, Jr.; as many of us know, Representative 
Conyers is chairman of the House Subcommittee on Criminal Jus¬ 
tice. Second, Congressman Mervyn Dymally, chairman of the Con¬ 
gressional Black Caucus. And third, Walter Fauntroy who so ably 
represents the District of Columbia. 

Gentlemen, we welcome you here today. I do not know whether 
or not the chairman has established any time limits. One does not 
normally provide time limits for Members of Congress, but we have 
a tremendous agenda before us yet today. If you could confine your 
remarks to 5, 6, 7, minutes, we would be very grateful to you. 

Congressman Conyers, your name was listed first so I will call 
upon you first. 



3162 


STATEMENT OF A PANEL CONSISTING OF HON. MERVYN 
DYMALLY, HON. JOHN CONYERS, JR., AND WALTER E. FAUNTROY 

Mr. Conyers. Mr. Chairman, if you do not mind, would you allow 
the chairman of the Congressional Black Caucus to make prefatory 
remarks. 

Senator Metzenbaum. Whatever is your preference. We are very 
happy to have Congressman Dymally with us. 

Mr. Conyers. Thank you. 

Senator Metzenbaum. I just was reading some notes, and your 
name happened to be the first one up. I guess it was in alphabeti¬ 
cal order. But, Congressman Dymally, please proceed. Glad to have 
you with us. 

Mr. Dymally. Mr. Chairman, members of this distinguished com¬ 
mittee, it is my honor, more appropriately my duty, as chairman of 
the Congressional Black Caucus to bring my colleagues before you 
to express the unequivocal opposition of the caucus and our con¬ 
stituents to the nomination of Judge Robert Bork. Only 4 days ago, 
more than 20,000 black Americans converged on the nation’s cap¬ 
ital for the Congressional Black Caucus 17th annual legislative 
weekend. Throughout those proceedings, a total of more than 67 
seminars, there was a single resounding theme: the demand for the 
rejection of the Bork nomination. 

My colleagues on the Congressional Black Caucus and I repre¬ 
sent men and women of diverse geographic regions, philosophical 
and political orientation. Yet there has been no variation on the 
message which we have received. Those who believe in the absolute 
integrity of the Constitution and its guarantees view a Bork ap¬ 
pointment to the Supreme Court as an act which imperils the very 
existence of our individual freedoms. 

We come here today in express opposition to one who threatens 
to trample the democratic spirit. We believe this is not just another 
political appointment but the selection of an individual who could 
well change the face of American civil liberties for years to come. 

Those who argue that this process is above politics ignore the re¬ 
ality of the society in which men and women of the bench exist. 
We respectfully request that this body on behalf of we the people 
not allow our Constitution to be jeopardized or victimized by a 
wave of judicial review of its very intents and purposes. 

Mr. Chairman, I bring to you my colleagues. Congressman John 
Conyers and Congressman Walter Fauntroy, to explain in detail 
the Congressional Black Caucus opposition to the nomination of 
Judge Bork. 

[Prepared statement follows:] 



3163 


introductory Statement 

Senate Judiciary Committee - Bork Confirmation 

CONGRESSMAN MERVYN H. DYMALLY 
Chairman 

Congressional Black Caucus 

September 29,1987 - Russell Senate Office Building - Room 325 

MR. CHAIRMAN, MEMBERS OF THIS DISTINGUISHED COMMITTEE, IT IS MY 

HONOR - BUT MORE APPROPRIATELY - MY DUTY AS CHAIRMAN OF THE 

CONGRESSIONAL BLACK CAUCUS TO BRING MY COLLEAGUES BEFORE YOU TO 

EXPRESS THE UNEQUIVOCAL OPPOSITION OF THE CAUCUS AND OUR 

CONSTITUENTS TO THE NOMINATION OF JUDGE ROBERT H. BORK. ONLY 

FOUR DAYS AGO, MORE THAN 20,000 BLACK AMERICANS CONVERGED ON THE 

NATION'S CAPITAL FOR THE CONGRESSIONAL BLACK CAUCUS' 17TH ANNUAL 
LEGISLATIVE WEEKEND. THROUGHOUT THOSE PROCEEDINGS - A TOTAL OF 

MORE THAN SIXTY-SEVEN EVENTS - THERE WAS A SINGLE RESOUNDING 

THEME, THE DEMAND FOR THE REJECTION OF THE BORK NOMINATION. 



3164 


MY COLLEAGUES IN IHE CONGRESSIONAL BLACK CAUCUS AND I, REPRESENI 
MEN AND WOMEN OF DIVERSE GEOGRAPHIC REGIONS, PHILOSOPHICAL AND 
POLITICAL ORIENTATION. YET THERE HAS BEEN NO VARIATION ON THE 
MESSAGE THAT WE HAVE RECEIVED. THOSE WHO BELIEVE IN THE ABSOLUTE 
INTEGRITY OF IHE CONSTITUTION AND ITS GUARANTEES VIEW A BORK 
APPOINTMENT TO THE SUPREME COURT AS AN ACT WHICH IMPERILS THE 

VERY EXISTENCE OF INDIVIDUAL FREEDOMS. 

WE COME HERE TODAY IN EXPRESS OPPOSITION TO ONE WHO THREATENS TO 

TRAMMEL THE DEMOCRATIC SPIRIT. WE BELIEVE THIS IS NOT JUST 

ANOTHER POLITICAL APPOINTMENT, BUT THE SELECTION OF AN INDIVIDUAL 

WHO COULD WELL CHANGE THE FACE OF AMERICAN CIVIL LIBERTIES FOR 

YEARS TO COME. 

THOSE WHO ARGUE THAT THIS PROCESS IS ABOVE POLITICS IGNORE THE 
REALITY OF THE SOCIETY IN WHICH MEN AND WOMEN OF THE BENCH EXIST. 
WE RESPECTFULLY REQUEST THAT THIS BODY ON BEHALF OF "WE THE 



3165 


PEOPLE" NOT ALLOW OUR CONSTITUTION TO BE JEOPARDIZED OR 
VICTIMIZED BY A HAVE Of JUDICIAL REVIEW Of ITS VERY INTENTS AND 
PURPOSES. 

NR. CHAIRMAN, I BRING TO YOU NY COLLEAGUES - CONGRESSMAN JOHN 
CONYERS AND CONGRESSNAN WALTER FAUNTROY TO EXPLAIN IN DETAIL 
THE CONGRESSIONAL BLACK CAUCUS POSITION ON THE NOMINATION OF 
JUDGE BDRK. 



3166 


The Chairman. Thank you very much, Congressman. I apologize, 
gentlemen, for being a few minutes late. I was over on the floor. 

Congressman Conyers. 

TESTIMONY OF JOHN CONYERS, JR. 

Mr. Conyers. Chairman Biden and Senator Thurmond and Sena¬ 
tor Metzenbaum, we are very pleased to be allowed to testify con¬ 
cerning the nomination of Judge Robert Bork to the U.S Supreme 
Court. This may be the most important vote for the Senate in the 
100th Congress from our point of view. 

As you know, for the past 22 years I have served on the House 
Judiciary Committee working with you over here on the Senate Ju¬ 
diciary Committee to improve the laws of the land, to improve race 
relations, not just as a legislator but as a human being who knows 
the pain and suffering my people have sustained on the long road 
toward first class and equal citizenship. 

Many of you worked with us to make a reality of the proposal to 
honor the birthday of Dr. Martin Luther King, Jr., as a national 
holiday, a bill I introduced 4 days after his tragic assassination. 
Seventeen years later, that bill was signed into law following over¬ 
whelming congressional endorsement. I once again would like to 
express publicly our gratitude to those of you who helped to honor 
t hi s great civil rights leader as one of our national heroes. 

One of the legacies of Dr. King is the Congressional Black 
Caucus on whose behalf we appear today, for we are truly the prod¬ 
uct of the civil rights movement which Dr. King founded. And we 
are living proof of the correctness and wisdom of his nonviolent 
philosophy and his unshakable belief in our constitutional system. 
It is in the spirit of Dr. King’s memory and his commitment to con¬ 
stitutional government that the same democratic rights for every 
single American that we come before you and urge the Senate to 
reject the nomination before you. 

The Congressional Black Caucus represents not just citizens of 23 
congressional districts and 12 States; we have a larger constituen¬ 
cy. We represent the aspirations of 20 million black Americans 
spread throughout this country. The very fact that there are only 
22 voting black Members of the House of Representatives, 5 per¬ 
cent of the House membership, in a country in which we constitute 
at least 10 percent of the population, and that only 1 black has 
served in the U.S. Senate since Reconstruction, reminds us of the 
tenuous position of the black minority and explains the importance 
of the federal judiciary to our well-being. 

The very existence of a sizable Black Caucus in the Congress of 
the United States today must be credited in significant part to the 
decisions and leadership of the Supreme Court, which was the first 
major institution in our land to respond to the pleas of black Amer¬ 
icans for justice. 

At the time of its Brown v. Board of Education decision in 1954, 
there were only two blacks in the Congress. And so what I am 
saying to you today is that if Robert Bork had had his way, none of 
the decisions that allowed us to be in this high place to serve with 
you to make our country better for everybody would have been 
able to have occurred. 



3167 


Baker v. Carr, the one-man, one-vote decision which has been 
talked about so much here; the poll tax case of Harper v. Virginia 
State Board of Election ; the literacy test—all of these cases are 
cases which, had he been on the Court, if I understand what he 
said, we might not have had ruled in the way that has permitted a 
political activity to become more active and more present here in 
America and in the Congress. And so what this nomination means 
to the Black Caucus and to black America cannot be understated. 

Let me just point out to you that Robert Bork’s public career has 
spanned a period in which our society has happened to have made 
some significant strides in extending the promise of equal justice to 
all, and eliminating many of the vestiges of a polarized past. Many 
Americans played heroic roles in this historic forward movement 
toward an integrated society. Millions of others who were once 
skeptical of the civil rights movement have now come to terms 
with it and have endorsed its objectives. 

During this entire period, Judge Robert Bork has, in effect, been 
an active and vocal legal heckler along every step of the forward 
march towards civil rights. And from all that appears on the public 
record, he remains so even today. 

So on behalf of all of our other colleagues in the Black Caucus, I 
urge you to join with the forward wave of history, with all who are 
concerned with human rights progress in America, with justice and 
fairness, and turn back this nomination. In a way, this debate is as 
much about ourselves as it is about Judge Bork. Not only is he 
being tested, but we are as well. Hopefully, we, and not he, will 
point the way to our country’s future. 

At a time when we pride ourselves on the advances brought 
about by the civil rights movement, his confirmation would repre¬ 
sent a mqjor step backward and would polarize and divide Ameri¬ 
cans as his nomination has already started to do. To black Ameri¬ 
cans, there is no more important vote than the nomination pending 
now before you. 

The Chairman. Thank you. 

[Prepared statement of Mr. Conyers follows:] 



3168 


TESTIMONY OF 
CONGRESSMAN JOHN CONYERS 
BEFORE THE 

SENATE JUDICIARY COMMITTEE 
ON THE 

NOMINATION OF ROBERT H. BORK TO THE SUPREME COURT 

Mr. Chairman, Members of the Judiciary Committee: Thank you 
for allowing me to testify on the nomination of Judge Robert H. 
Bork to the United States Supreme Court. This may be the most 
important vote for the Senate in the 100th Congress. 

For the past 22 years, I have served on the House Judiciary 
Committee working with you on the Senate Judiciary Committee to 
improve the laws of the land, to improve race relations, not just 
as a legislator but as a human being who knows the pain and 
suffering my people have sustained on the lcng road toward first 
class and equal citizenship. 

Many of you worked with with me to make a reality the 
proposal to honor the birthday of Dr. Martin Luther King Jr. as a 
national holiday, a bill I first introduced four days after his 
tragic assassination. Seventeen years later that bill was signed 
into law following overwhelming congressional endorsement. I 
would once again like to express publicly my gratitude to those 
of you who helped to honor this great civil rights leader as one 
of our national heroes. 

One of the legacies of Dr. King is the Congressional Black 
Caucus, on whose behalf I appear today. For we are truly the 
product of the civil rights movement which Dr. King founded. And 
we are living proof of the correctness and wisdom of his non¬ 
violent philosophy and his unshakeable belief in our 
constitutional system. 

It is in the spirit of Dr. King's memory and his commitment 
to constitutional government, to the same democratic rights for 
every single American, that we come before you and urge the 
Senate to reject the nomination before you. The Congressional 
Black Caucus represents not just the citizens of 23 congressional 
districts in twelve states. We have a larger constitutency; we 
represent the aspirations of 20 million black Americans spread 
throughout this country. 



3169 


The very feet that there are only 22 voting black members of 
the House of Representatives — constituting about 5 per cent of 
the House membership in a country in which black people are more 
than 10 per cent of the population — and that only one black 
has served in the United States Senate since Reconstruction, 
reminds us of the tenuous position of the black minority and 
explains the importance of the federal judiciary to our well 
being. 

The very existence of a sizeable Black Caucus in the 
Congress of the United States today must be credited, in 
significant part, to the decisions and leadership of the Supreme 
Court, which was the first major institution in our land to 
respond to the pleas of black Americans for justice. At the 
time of its landmark decision in Brown v. Board of Education in 
1954, the decision which finally allowed black people to take 
their rightful place as part of the people of the United States, 
there were only two black members of Congress. It was the 
Supreme Court which opened up the political process: 

— Baker v. Carr . requiring one-person-one-vote and thus 
forbidding rural-dominated legislatures from disfranchising black 
urban masses; 

— Harper v. Virginia State Board of Election , invalidating the 
poll tax; 

— Katzenbach v. Morgan , and Oregon v. Mitchell , upholding 
Congressional power under the 14th Amendment to prohibit literacy 
tests and other devices which had a discriminatory affect on 
black voting; 

If not for those decisions, there would be no where near 23 black 
members of Congress today. So, in a very real sense, the Black 
Caucus is the progeny of the Supreme Court. The Court opened 
wide the door for black participation in the nation’s political 
life and decision-making. 

BMt Robert Bork ha d hflti hi? WflYi pgne of Uiesg g^cisjgps 
would have occurred and there would be no Black Caucus. 

Judge Bork condemned every one of these decisions. He 
called Harper "wrongly decided." He denied Congress had power 
under the 14th Amendment to legislate a discriminatory-affects 
test and said the Morgan and Mitchell decisions were "pernicious 



3170 


constitutional law.** He derided Baker v. Carr as being without 
constitutional basis. 

If Judge Bork had been sitting on the Supreme Court at the 
time those cases were decided, and if his views had prevailed, it 
is likely I would not be here today as a senior member of the 
House of Representatives. 

That is what this nomination means to the Black Caucus and 
to black America. 

The franchisement of blacks has, of course, impacted on the 
whole country* Twenty years ago the black vote and black voters 
could be safely ignored. That is surely no longer the case. 

In 1986, the black vote was decisive in at least six United 
States Senate contests, elections in which the winner prevailed 
only because of massive support from black voters. 

This is how the Supreme Court’s voting rights decisions have 
impacted on the political process and provided black Americans 
with a sense of empowerment they did not previously enjoy. And 
it is all the result of decisions which Judge Bork denounced and 
ridiculed. Black America cannot risk return to the bad old days. 

* * 

It was the Supreme Court which first recognized, in Brown v. 
Board of Education , that the social compact known as the 
Constitution of the United States promised equal treatment under 
the laws to members of minority groups; and that it was the 
special responsibility of the judicial branch to enforce that 
promise even over the objections of electoral majorities. 
Indeed, 16 years before Brown , in the historic footnote 4 of the 
Carolene Products case, the Supreme Court observed that the 
courts had a special obligation under the Constitution to protect 
the rights of "discrete and insular minorities" from oppression 
by majoritarian institutions. At least for the 33 years since 
the Brown decision, the federal courts, under the guidance of the 
Supreme Court, have actively enforced that commitment to protect 
minority rights. 

For black Americans and other minority groups, the 



3171 


enforcement of this constitutional promise is a matter of 
survival. In a democratic society, legislatures can be generally 
trusted to watch over the prerogatives of the majorities which 
elect them. Minorities enjoy no such assurance. 

That is why protection of minority rights is uniquely the 
job of the judiciary. The recent balance of the United States 
Supreme Court, as reflected in votes dealing with minority 
rights, has left this principle of protection in a tenuous 
posture. 

And that is what gives us such great concern about Judge 
Bork. His extensive body of writings, over a long career, both as 
an academic and as a judge, make clear that he does not accept 
the concept of a social compact in which the judicial branch is 
obliged to protect minorities from the tyranny of the majority. 
He is a strict majoritarian — at least where minority rights are 
concerned. And we are not reassured by anything different he 
said before this Committee at his job interview. 

Judge Bork’s view of the social compact is at direct odds 
with those of most of the Justices who have sat on the Supreme 
Court for at least the past 50 years. Over and over, starting 
with his now famous exegesis of "Neutral Principles" in the 
Indiana Law Journal, Judge Bork has insisted that the only 
individual rights protected against the majority are those 
explicitly and unmistakably mentioned in the Constitution and 
Bill of Rights. That, in itself, is a chilling idea for those of 
us whose ancestors were enslaved at the time of the adoption of 
the original compact and whose assimilation into the polity of 
the United States under the Constitution required a bloody war 
and another hundred years of equivocation. 

Equally disturbing is his apparent willingness to permit 
majorities to maintain exclusivity through the use of devices 
which restrict the right to vote. I refer again to his public 
criticism of legislation forbidding certain voter literacy tests 
which had been used as a pretext for discrimination and his 
denunciation of the Supreme Court decision forbidding poll taxes. 



3172 


Whatever his real motivation, it is indisputable that Judge 
Bork opposed virtually every civil rights advance of this era. 

In 1948, six years before Brown v. Board of Education, the 
Supreme Court decided the landmark case of Shelley v. Kraemer . A 
precursor of Brown . the case outlawed judicial enforcement of 
racially restrictive deed covenants. Bork's Indiana Law Journal 
article denounced the Shellev opinion, thus supporting the right 
of property owners to divide the country into racial ghettoes 
enforced by the police power. In the 40 years since Shelley , 
housing integration has advanced at a snail's pace. If Bork had 
had his way, it would have stood absolutely still. 

When Congress, inspired by Supreme Court decisions like 
Shellev and Brown , as well as the early civil rights movement, 
passed the Civil Rights Act of 1964 prohibiting discrimination in 
public accommodations, Bork called it "unsurpassed ugliness." 
There is no record that he ever found racial segregation and 
discrimination itself so personally obnoxious or offensive. 

And for the next 20 years. Hr. Bork took every opportunity 
to inveigh against proposals to expand rights of racial equality 
and justice in our land, including his opposition to protection 
of the right to vote discussed earlier: 

— As Solicitor General, Bork opposed fair housing remedies 
for low income black citizens even though the federal government 
had participated in the discrimination. ( Hills v. Gautreaux . 425 
U.S. 284, 1976). 

-- He found fault with the Supreme Court's decision in 
Reitroan v. Mulkev (367 U.S. 369, 1967), which upheld the 
California Supreme Court decision invalidating the state's 
Proposition 14, a ballot measure that overturned California's 
open housing law. 

— In 1972, Bork was one of only two law professors to 
testify in support of the constitutionality of proposed 
legislation to drastically curtail school desegregation remedies 
that the Supreme Court had held necessary to cure violations of 
the 14th Amendment. And as Solicitor General, he continued to 
oppose school desgregation remedies before the Supreme Court. 



3173 


-- Regarding affirmative action in medical school 
admissions, Bork sharply attacked the opinion of Justice Lewis 
Powell, the man he is nominated to succeed, in University of 
California Regents v. Bakke (438 U.S* 265, 1978), for suggesting 
that universities might take affirmative steps to train gualified 
blacks as doctors to meet the needs of the medically 
underrepresented black community. Justice Powell has cited that 
opinion as the one of which he is most proud. 

Judge Bork has gone so far as to say that affirmative action 
offends "ideas of common justice." I have not seen in his 
writings a suggestion that he feels racial discrimination 
"offends common justice." 


CONCLUSION 

Judge Bork's public career has spanned the period in which 
our society has made its greatest strides in extending the 
promise of equal justice to all its citizens and eliminating many 
of the vestiges of a polarized past. Many Americans played 
heroic roles in this historic forward movement toward an 
integrated society. Millions of others who were once skeptical 
of the civil rights movement have now come to terms with it and 
endorsed its objectives. During this entire period, Robert Bork 
has been in effect an active and vocal heckler along every step 
of the forward march toward civil rights. And, from all that 
appears on the public record, he remains so to this day. 

So, I, on behalf of my colleagues in the Black Caucus, urge 
that you join with the forward wave of history, with all who are 
concerned with human rights progress in America, with justice 
and fairness, and turn back this nomination. 



3174 


In a way, this debate is as much about ourselves as it is 
about Judge Bork. Hot only is he being tested, but we are as 
well. Hopefully, we, not he, will point the way to our country's 
future. At a time when we pride ourselves on the advances 
brought about by the civil rights movement, his confirmation 
would represent a major step bac)cward and would polarize and 
divide Americans as his nomination has already started to do. 

To black Americans there is no more important vote than that 
of the nomination pending before you now. Thank you. 



3175 


The Chairman. Mr. Fauntroy. 

TESTIMONY OF WALTER E. FAUNTROY 

Mr. Fauntroy. Thank you so very much, Mr. Chairman, Senator 
Metzenbaum, and Senator Thurmond. 

It is my happy opportunity to appear before you as the lone con¬ 
gressional representative of 700,000 disenfranchised residents of 
the District of Columbia who continue in this 200th year of the 
celebration of the Constitution to endure the tyranny of taxation 
without representation. 

I appear also in my capacity as president of the Congressional 
Black Caucus national network vehicle, the National Black Leader¬ 
ship Roundtable composed of the heads of some 300 national black 
organizations who are working collectively on a number of projects 
for the economic, political and social empowerment of our people. I 
am also here as chairman of the board of directors of the Southern 
Christian Leadership Conference founded by Dr. Martin Luther 
King, Jr., and the organization and men with whom I worked for 
so many years as an organizer in the civil rights movement. 

I appear here with my colleagues in the Congressional Black 
Caucus for the express purpose of unalterably opposing the confir¬ 
mation of Judge Robert Bork to the Supreme Court of the United 
States. You know we opposed his confirmation because Bork is a 
man whose record clearly suggests that he would place in jeopardy 
the hard-won civil rights, civil liberties and social gains that have 
been made over the last half century. 

Accompanying me for this testimony is Attorney Leslie Basker- 
ville, who is executive director of our roundtable. 

The African-American position, gentlemen, on Mr. Bork, which 
we confidently represent here today, is one at which we have ar¬ 
rived after careful consideration of the Bork record in terms of 
three things: how it would have affected our past; how it is affect¬ 
ing our present struggle; and what it bodes for our future if he is, 
in fact, confirmed. 

Let us take a look at the past. When we open the floodgates of 
our collective memory and travel back over the years of our some¬ 
times up and sometimes down struggle to be full citizens of this 
country, we recognize that his 20th century record on voting rights, 
equal housing opportunity, equal education and employment oppor¬ 
tunities, and equal access to public accommodations suggests to us 
that were he on the High Court in the 19th century, he would have 
supported the Dred Scott decision, holding that black people had no 
rights that whites were bound to respect. He would have opposed 
the gains that we made during the Reconstruction when blacks 
were elected to the Congress and other legislative bodies, and he 
would have supported the Hayes-Tilden compromise and all of the 
post-Reconstruction disenfranchisement activity for the next 4 
years that stymied equal access, equal opportunity and full Citizen¬ 
ship for African-Americans. 

Had Bork been on the High Court in the first half of the 20th 
century, a period that Justice Douglas limited as a “spectacle of 
slavery unwilling to die,” we believe he would have voted to block 
full citizenship rights for our people; he would have voted to de- 



3176 


prive blacks erf the right to own and convey property. Had he been 
on the Court in 1917 with the Buchanan v. Walley case or with the 
Shelley v. Kraemer case, we believe that he would have interpreted 
the Constitution to prohibit the integration of dining cars, restau¬ 
rants, buses, beaches and parks and voted against McCabe, Atche- 
son, Topeka and Santa Fe Railroad in 1914 or Lombard v. Louisi¬ 
ana in 1963. 

Had Bork been on the High Court when key questions on the 
voting rights of African-Americans were decided, he would have 
voted to deny us the franchise, as he stated his position on the 
Katzenbach v. Morgan back in 1966. 

Had Bork been on the High Court, he would have opposed equal 
access to public accommodations as provided by the Civil Rights 
Act of 1964, calling these provisions, as he has, ones of “unsur¬ 
passed ugliness.” 

As the Reverend Gardner C. Taylor said at our Congressional 
Black Caucus prayer breakfast this past weekend, we are hearing 
in these proceedings from three Borks: the Bork that was, the Bork 
that claims now to be today, and the Bork that nobody knows, one 
who would sit on the Supreme Court, were you to be so unwise as 
to confirm him. In the field of education and employment, had 
Bork been on the High Court, he would have voted against provid¬ 
ing equal educational opportunity for blacks, as a number of cases 
which are listed here will suggest. 

In short, Mr. Chairman, black Americans are fortunate that Mr. 
Bork was not on the High Court at the time when these landmark 
decisions were made; for with this body of law, begirming in the 
early 1940’s, escalating in the 1950’s and reaching national promi¬ 
nence in the 1960’s, a great movement to end the hypocrisy of this 
separate and unequal society emerged in the United States. The 
culmination of this movement was the passage of the civil rights 
legislation, executive orders and court decisions that have been a 
source of support for all of us. 

We all know that, despite gains made by blacks in recent dec¬ 
ades, blacks are still second class citizens in many respects. In 
1987, the average per capita income of households headed by 
whites was $39,000; for a comparable black community residence, 
$33,000. 

Today, Mr. Chairman, the progress of the past 15 years, and cer¬ 
tainly of the past 35, is undergoing an assault. Already existing dis¬ 
parities between black and white Americans in income, education, 
health, joblessness, economic well-being have been aggravated by 
the Reagan administration’s fiscal and civil right policies. Both 
civil rights and civil liberties have been bitterly attacked in recent 
years. Efforts to dismantle the civil rights gains of the past two 
decades have acquired a new vengeance in the Reagan administra¬ 
tion, turning its back upon the bipartisan support for civil rights 
laws and policies that have been shaped in the last 20 to 25 years. 

For example, the administration sought to weaken the Voting 
Rights Act extension, to kill Legal Services Conx>ration activity, to 
provide tax exemptions to schools which discriminate, and scuttle 
the Freedom of Information Act, to reduce the federal court au¬ 
thority to hear these cases involving certain controversial social 
and constitutional issues, as cases in point. In the judicial sphere, 



3177 


there are a number of assaults that I have listed here, which I will 
not now mention. 

The High Court, as you know, did deal one severe blow to civil 
rights enforcement in 1984 with the Grove City case. In that deci¬ 
sion, the Court held that title IX of the 1972 Education Act amend¬ 
ments barred sex discrimination only in the specific program of ac¬ 
tivity. And we are all familiar with that. 

A review of the Bork record suggests that were he on the High 
Court at the time of many of these landmark cases deciding the 
rights of African-Americans, he would have denied us what we 
have already gained and what we must now protect. 

The constitutional world view of Bork suggests the clear and 
present danger his confirmation poses to African-Americans, and 
that is why we are unalterably opposed to his confirmation. To con¬ 
firm to a 20th and possibly a 21st century Supreme Court one who 
opposed minority rights and those legal remedies designed to tear 
down the remaining barriers to full citizen participation, should 
not be confirmed. 

Let me return to Dr. Gardner Taylor’s thesis that you are exam¬ 
ining three Robert Borks here this week: the Bork that was, the 
Bork that he now claims to be, and the Bork that nobody knows, 
the one who would sit on the Supreme Court should you confirm 
him. We are confident that we know the Bork that would be. We 
believe that the past is prologue. We urge you not to be swayed by 
his display of erudite obfuscation during his 30 hours of testimony, 
for his record, which spans the same period in which many of our 
most significant strides were made toward becoming a more open 
and inclusive society, shows that Bork opposed those strides. The 
testimony he has given I think speaks eloquently to that fact. 

So we urge you strongly to vote no, to vote no for the bright 
future of open and inclusive society in our country. Vote no, Sena¬ 
tors Heflin and Shelby, for Mayors Richard Arrington and the Joe 
Reeds and the John Nettles of Alabama. Vote no, Senators Specter 
and Heinz, for the Reverend Leon Sullivans, the Mayor Wilson 
Goodes, the C. Dolores Tuckers, the Representative David Richard¬ 
sons and the Attorney William Colemans of Pennsylvania. 

We plead with you vote no. Senators Nunn and Fowler, for the 
Coretta Scott Kings, the Andrew Youngs, the Joe Lowerys, the 
Jesse Hills of Georgia. We urge you to vote no, Senators Johnston 
and Breaux, for the Mayor Bartholomews, the Faye Williamses, the 
Dr. Norman Frances, and the Joe Delfitts of Louisiana. 

We urge you to vote no, Senators Sasser and Gore, for the Alex 
Haleys, the Lois DuBarries, the John Fords, and the Rufus Joneses 
of Tennessee. We urge you in Mississippi, Senators Stennis and 
Cochran, to vote no for the Mike Espes and the Bennie Thompsons 
and the Heniy Kirkses and the Fannie Lou Hamers of Mississippi 
and across this nation. 

Vote no to the risk of reopening race relations battles which 
have been fought and put to rest. Vote no to big business and big 
government, and vote for individuals and consumers. Vote no to in¬ 
trusions on the right to privacy in our homes and on our jobs. Vote 



3178 


for justice, vote for freedom, vote for equality of all men and 
women. Vote not to confirm Robert Bork to the Supreme Court of 
the United States. 

The Chairman. Thank you very much, Congressman. 

[Prepared statement of Mr. Fauntroy follows:] 



3179 


TESTIMONY OF 

THE HONORABLE WALTER E. FAUNTROY (D-D.C.) and 
PRESIDENT OF THE NATIONAL BLACK LEADERSHIP ROUNDTABLE 
BEFORE THE 

SENATE JUDICIARY COMMITTEE 
ON 

THE NOMINATION OF JUDGE ROBERT BORX TO THE UNITED STATES SUPREME COURT 
Tuesday, September 2 9, 19B7 

Mr, Chairman and members of this Committee, I thank you for this 

opportunity to appear before you this morning as the lone congressional 

representative of the 700,000 disenfranchised residents of the District 

of Columbia, who continue to endure the tyranny of taxation without 

representation. I appear also in my capacity as President of the 

National Black Leadership Roundtable, a coalition of the heads of more 

than three hundred (300) national Black organizations who are working 

collectively on a number of projects for the economic, political and 

social advancement of African Americans, and as Chairman of the Board of 

> 

Directors of the Southern Christian Leadership Conference and long-time 
activist in this country’s organized civil rights movement. I appear to 
express our unalterable opposition to the confirmation of Judge Robert 
Bork to the Supreme Court of the United States. We oppose his 
confirmation because Bork is a man whose record clearly suggests that he 
would place in jeopardy the hard won civil rights, civil liberties and 
social gains that have been made over the last half century* 
Accompanying me as we make this argument is Attorney Le 2 li Baskerville, 
Executive Director of the Roundtable. 

THE AFRICAN AMERICAN PERSPECTIVE ON BORK 
The African American position on Robert Bork which my colleagues 
and I confidently represent today is one at which we have arrived after 
careful examination of the Bork record in terms of how it would have 
affected our past, how it is affecting our present struggle and what it 
bodes for our future. 

OUR PAST STRUGGLE AND THE BORK RECORD 
Id this year of the bicentennial celebration of the U. S. 
Constitution, much attention has been paid to the strengths and 
weaknesses of our Constitution. For African ancestored people, the most 
glaring weakness is that the document legally sanctioned the pernicious 



3180 


system of American slavery by reducing their legal status to 
chattel—three fifths of a human being* Its strength is that several 
amendments later, albeit enacted because of the relentless struggles of 
those who were not included in the Framers' visions of "We The People" 
and their allies, African ancestored people became one of "the people" 
The history of Africans in America during the first 200 years under our 
Constitution has been one of first attempting to be recognized as legal 
beings? then seeking inclusion among those whose rights and privileges 
were protected under the Constitution? and then attempting to obtain for 
these newly recognized beings, "simple justice." At each point in that 
struggle, the Bork record suggests that he would have weighed in against 
our quest for full citizenship rights. 

His 20th Century record on voting rights, equal housing opportun¬ 
ity, equal educational and employment opportunities, and equal access to 
public accommodations suggests to us that, were he on the High Court in 
the 19th Century, he would have supported the Dred Scott Decision (1857) 
holding that African ancestored people had no rights that whites were 
bound to respect? he would have opposed the gains we made during the 
Reconstruction when Blacks were elected to the Congress and other 
legislative bodies? and he would have supported the Hayes-Tilden 
Comprcroise and all of the post-reconstruction disenfranchisement 
activity which for the next forty years stymied equality of opportunity 
and full ciltizenship participation by African Americana. 

Had Robert Bork been on the High Court in the first half of the 
twentieth century, a period which Justice Douglas lamented as "a 
spectacle of slavery unwilling to die" - Jones v. Mayer 393 U.S. 409 
(1968), we believe he would have voted to block full citizenship rights 
for our people. He would have voted to deprive blacks of the right to 
own and convey property had he been on the court in 1917 when Buchanan 
v. Wanley, 245 U.S. 60 was decided, or in 1927 when Shelley v. Kraemer 
334 U.S. 1 (1948) was decided. His archaic views on segregated 
neighborhoods were evidenced when, as Solicitor General of the United 
States, he unsuccessfully opposed fair housing remedies for low income 
black citizens who had been the victims of Government discrimination. 
Hills v* Gautreaux 425 U.S. 284 (1976). 

We believe he would have interpreted the Constitution to prohibit 



3181 


the integration of dining cars, restaurants, buses, beaches and parks 
and voted against McCabe v Atchinson, Tokeka and Santa Fe Railroad U.S. 
15 (1914). (Dining Cars) ; Lombard v. Louisiana 373 U.S. 267 (1963) 

(Restaurants); Gayle v. Browder , 352 U.S. 903 (1956) (Buses)j Mayor of 
Baltimore v. Dawdon, 350 U.S. 877 (1955) (Beaches)/ and New Orleans Park 
Improvement Association v. Detiege 358 U.S. 54 (1958) (Park). 

Had Bork been on the High Court when key questions on the voting 
rights of African Americans were decided, he would have voted to deny us 
the franchise as his stated positons on Katzenbach v, Morgan, 348 U.S. 
641 (1966) and Oregon v. Mitchell, 400 U. S. 112 reveals. He has called 
those decisions upholding a national ban on literacy tests "very bad, 
indeed, pernicious Constitutional law." See, Hearings on Human life 
Bill before the Subcommittee on Separation of powers of the Senate 
Judiciary Committee, 97th Congress, 1st Session, (1982). He would have 
opposed the outlawing of the State Poll tax as in the case of Harper v. 
Virginia Board of Education, 383 U.S. 663 (1966) which ha characterized 
as "wrongly decided". See, Senate Judiciary Hearings on Confirmation of 
Robert Bork as Solicitor General, p. 17 (1973) he would have opposed the 
one-person-one vote principle as expressed in the landmark civil rights 
cases of Baker v. Carr 369 U.S. 86 (1962); and Reynolds v. Sims , 377 

U.S. 533 (1964) stating as he has that there is no basis for these 

dicisions under the Fourteenth Amendment. 47 indiana Law Journal 1, 
18-19 (1971). 

Had Robert Bork been on the High Court, he wuold have opposed equal 
access to public accommodations as provided in the Civil Rights Act of 
1964, calling these provisions "unsurpassed ugliness." (Bork, Civil 
Rights—A Challenge, The New Republic , 1963). I am aware, Mr. Chairman, 
that the years later at confirmation hearings in 1973 he conveniently 
repudiated this position as he has done others in these confirmation 
hearings. As the Reverend Dr. Gardner C. Taylor said at the 
Congressional Black Caucus Prayer Breakfast last week, "we are hearing 
from three Robert Borks in the ' proceedings; The Robert Bork of the 
past; the Robert Bork he claims to be today; and the Robert Bork nobody 
knows, the one who would sit on the Supreme Court were you to be so 
unwise as to confirm him. 

In the fields of education and employment, had Robert Bork been on 







3182 


the High Court, he would have voted against providing equal educational 
and employment opportunities for blacks. For he would have opposed 
Steele v. Louisville and Nashville Railroad Company , 323 U.S. 192 
(1944); Brown v. Board of Education 347 U.S. 483 (1954)? Bolling v. 
Sharpe, 347 U.S. 497 (1954), or so his actions would suggest when, as 
Solicitor General, he attempted to aid the city of Boston in its move to 
circumvent school desegregation efforts. 

Bork sought to have the government file a brief in support of Boston, 
but was overruled by Attorney General Devi. See, Orfleld, Must Ke Bug? 
pp 352-353 Brookings Institution 1967i Washington Post, Kay 30, 1976. 
Bork aUo testified in Bupport of the constitutionality of legislation 
drastically limiting school desegregation remedies that the Supreme 
Court has held const!tutionally necessary to redress violations of the 
14th Amendment. Hearings of the Subcommittee on Education of the Senate 
Committee on Labor and Public Welfare on the Equal Education Opportunity 
Act of 1972. 92nd Congres, 2nd Session (1972). .His characterization 
of Bakke as "resting upon no constitutional footing of its own" would 
further support this conclusion. (The Unpersuasive Bakke Decision" The 
Wall Street Journal . July 21, 1978. 

In short, Mr. Chairman, Black Americans are fortunate that Mr. Bork 
was not on the High Court at the time these landmark, decisions were 
made. For with this body of law, beginning in the 1940’s, escalating In 
the 1950s, and reaching national prominence in the 1960's, a great 
movement to end the hyprocracy of this separate and unequal society 
emerged in the United States. The culmination of this movement was the 
passage of key civil rights legislation, executive orders and court 
decisions while enforcement of the new laws was at all times inadequate, 
slow but steady progress began to be made. In the decade of the 1960s, 
and continuing, although slowing in the 1970s, progress was made in 
voting rights enforcement, educational attainment, lowering the poverty 
rate, and improving Black employment. More Black youths attended 
college and the managerial/professional occupations seemed to be opening 
for Blacks. 

Despite gains made by Blacks in recent decades, however. Blacks are 
still second-class citizens in many respects. In 1987 the average per 
capita income of households headed by whites is $39,135. For comparable 
Black households, it is about $3,397 (down from $4,500 in 1981). The 



3183 


unemployment rate of Blacks has remained more than twice that of whites 
in the post World War II era. A Bimilar pattern haB prevailed in 
education—less than 9 percent of black Americans finished four years of 
college compared to over 18% of white Americans. In the early 1980 b, 
Blacks served as mayors of same of our largest cities and they were also 
well represented in county governments and state legislatures in those 
areas of both the North and the South where the Black population was 
Concentrated. However, there were no Black state governors, and when 
Edward Brooke of Massachusetts lost his Senate seat in 1978, this, the 
nation's most prestigious legislative body was left without a single 
Black member. 


OUR PRESENT STRUGGLE AND BORK 

Today, Mr. Chairman, the progress of the past 35 years has not only 
stalled, but strident efforts are being directed toward reversing the 
small advances made and returning to the old days of Black subordination 
under the unvarnished rule of white men. Already existing disparities 
between Black and white Americans in income, education, health, 
joblessness and economic well-being have been aggravated by the Reagan 
Administration's fiscal and civil rights policies. Both civil rights 
and civil liberties have been bitterly attacked. 

Efforts to dismantle the civil rights gains of the last two decades 
have acquired a new vengeance in the Reagan Administration. Turning its 
back upon the bi-partisan support for civil rights laws and policies 
that have characterized our nation's most recent history, the 
Administration has systematically crippled federal enforcement. This 
has occured through abuse of the federal regulatory progress; promotion 
of bankrupt and contrary legal and litigation positions; non-enforcement 
Of the laws; and support of legislation to reverse major, time-honored 
and court-aupported civil rights remedies. 

For example, the Administration sought to weaken the Voting Rights 
Act extension, kill the Legal Service Corporation, provide tax 
exemptions to schools which discriminate, scuttle the Freedom of 
Information Act, reduce the federal court authority to hear cases 
Involving certain controversial social and constitutional issues (e.g., 
school desegregation), limit the Supreme Court's function as final 



3184 


arbitor of the nation's laws in cases involving certain controversial 
social and constitutional issues, and secure enactment of retrogressive 
immigration reforms. But the Administration made little headway in the 
legislative branch. It was rebuffed by both Democrats and Republicans 
alike. 

In the judicial sphere, the Administration was likewise stymied in 
its effort to get support for its skewed interpretation of federal civil 
rights laws. Despite six years of relentless Administration efforts to 
obtain judicial sanction for its antebellum civil rights posture, the 
Supreme court, by and large,‘remained vigilant in its protection of the 
rights of Blacks and other minorities covered by our civil rights laws. 
Thrice in 6 years, for example, the High Court upheld against scathing 
A<fciinistration assault, the use of race-conscience goals and timetables 
to remedy the effects of racial discrimination. The court upheld such 
goals in the recruitment, selection ( Sheet Metal Workers v. EEOC) and 
promotion (U.S. v. Paradise) of protected persons. 

The high court did, however, deal one severe blow to civil rights 
enforcement in its 1984 Grove City case. In that decision, the Court 
held that Title IX of the 1972 Education Act Amendments barred sex 
discrimination only in the specific “program or activity* for which the 
federal funds were intended, not the entire education institution. This 
misinterpretation of the law has been used to narrow the scope of 
coverage of three other anti-discrimination laws which contain the same 
“program or activity" languages Title VI of the 1964 Civil Rights Act, 
which bars discrimination baaed on race, color or national origin in all 
federally assisted programs or activities? Section 504 of the 
Rehabilitation Act of 1973, which prohibits bias against the handicapped 
in programs or activities receiving federal aid; and the “Age 
Discrimination 'Act of 1975, which bars discrimination based on age in 
programs activities receiving federal aid. 

A review of the Bork record suggests that were he On the High Court 
at the time the landmark cases deciding the rights of African Americans 
to fully and freely participate in the electoral process were decided; 
or when the cases were decided regarding their access to open and decent 
housing in neighborhoods of their choosing; in equal educational and 
employment opportunities? equal access to public accommodations and 



3185 


cases that generally rid this society of the remaining legal vestiges of 
slavery—the "depth and incidence" of inequality which existed in the 
first 50 years of Twentieth Century America, would today still exist* 
Moreover, his opinions indicate that if confirmed to the Supreme Court, 
the judicial unraveling process that we note with the Grove City^UX 
decision and its aftermath, will undoubtedly continue and hasten. 
Gentlemen, this is something we dare not risk* 

_ This constitutional worldview of Bork suggests the clear and 

present danger his confirmation poses to African Americans* and to the 
continued advancement our great society is making toward becoming a more 

just and open society. _ To confirm to a twentieth and possibly 

twenty-first Century Supreme Court one who opposes the protection of 
minority rights* and those legal remedies designed to tear down the 
remaining barriers to full participation in our society by all groups, I 
believe, would send a dangerous signal to those who have just begun to 
be integrated Into the American social fabric, and who attribute their 
alow, but steady progress, in large measure to the careful and 
calculated exercise of the full panoply of legal remedies available to 
them* To add to our High Court a threat to the voting rights, housing 
rights, employment and education rights* and equal access rights of 
minorities, in this general climate of growing polarization, as 
evidenced by Howard Beach, the Citldel Incident, Forsythe County the 
resurgence of racially motivated violence on a number of our college 
campuses, augurs for social unrest and racial antagonism* 

_ OUR FUTURE AND BORK 

_ I return now to Dr*Gardner Taylor's thesis that you are examining 

three Robert Borks at these hearings: The Bork that was> the Bork that 
he claims now to be; and the Bork nobody knows, the one who would sit on 
the Supreme Court should you confirm him* We are confident that we know 
the Bork that would be* We believe that the "past is Prologue." We 
urge you not to be swayed by his display of erudite obfuscation during 
his 30 hours of testimony* For, his record, which spans the same period 
in which many of our most significant strides*were made toward becoming 
a more open and Inclusive society, shows that Bork opposed those 
strides* _ The testimony he gave before you was* in many regards 






































3186 


materially different from his writings and actions. We are all familiar 
with "confirmation conversions" and Bork seems to undergo a bit of a 

metamorphosis each time he comes before us for confirmation. _ We urge 

you to look beyond the ruse and the rhetoric at the documented Bork 
record/ and if you believe/ as do the people I represent/ that we must 
not jeopardize the progress this country has made with respect to 
providing equal opportunity for all its citizens/ then you must vote no 
on Bork. Vote no for the bright future of open and inclusive society. 
Vote no. Senators Heflin and Shelby, for the Mayor Richard Arringtons, 
Joe Reeds and Rev, John Nettles In Alabama, vote no, Senators Specter 
and Heinz, for the Reverend Leon Sullivans, the Mayor Wilson Goodes, the 
C. Delores Tuckers, the Representative David Richardsons on the Attorney 
William Colemans of Pennsylvania» 

_ Vote no, Senators Nunn and Fowler, for the Coretta Scott Kings, the 

Mayor Andrew Youngs, the Reverend Joseph Lowerys and the Jesse Hills of 
Georgia. Vote no, Senators Johnston and Breaux for the Mayor Barthol- 
omy's , the Faye Will jama, the Dr. Norman Frances and the Joe Delplts of 
Louisiana. 

_ Vote no, Senators Sasser and Gore Cor the Alex Haleys, the Lois 

Deberrys, the John Fords and the Rufus Jones of Tennessee. 

_ Vote nO/ Senators Stennis and Cochran, for the Mike Espys and the 

Benny Thompsons/ the Henry Kirkseys and the Fanny Lou Hammers of 
Mississippi. 

_ Vote no to the risk of re-opening race relations battles which have 

been fought and put to rest, 

_ Vote no to big business and big government. Vote for individuals 

and the consumer. 

_ Vote no to intrusions on the right to privacy In our homes and on 

our jobs. 

_ Vote for justice, vote for freedom, vote for the equality of all 

men and women. 

_ Vote not to confirm Robert Bork to the Supreme Court of the United 

States. 























3187 


The Chairman. Senator Thurmond. 

Senator Thurmond. I would like to ask you all some questions, 
but I cannot think of any question I could ask in which you would 
give a favorable answer. [Laughter.] 

At any rate, we are glad to have you here, all three of you distin¬ 
guished Congressmen. 

Mr. Dymally. Good to be with you. The Senator would be 
pleased to know that he and I share the same platform against the 
excise tax and tobacco in North Carolina. 

Senator Thurmond. South Carolina. I am from South Carolina. 

Mr. Dymally. South Carolina. 

Senator Metzenbaum. I appreciate all three of you coming over. 
I appreciate the fact the Congressional Black Caucus has taken a 
position with respect to this matter, and I think the impact of your 
leadership in this country is being felt in this instance as it has 
been in so many other instances in recent years, and I am just 
grateful to you for being with us today. 

The Chairman. Gentlemen, I have one question. How do you re¬ 
spond to the assertion that although Judge Bork may have—with 
the single exception of the Brown case—may have been wrong on 
every civil rights issue of the past 28 years, at the time that it was 
before—at the time it was current. But notwithstanding that, he 
has, as a circuit court judge, not let those feelings, or statements 
from the past impact upon his decisionmaking process, and that he 
is now convinced that those gains were legitimate, should have 
been made, and has recanted—to use his phrase—many of those 
views. 

And we were told by Elliot Richardson a few moments ago, that 
we should not look at what he was, and said, but what he is saying 
now. 

How do you respond to that? 

Mr. Conyers. Well, Senator Biden, the fact of the matter is that 
in a circuit court circumstance, you only get a fraction of those 
kinds of cases. There are very, very few of the kinds of landmark 
cases that he has commented on so frequently across his legal and 
professional career, that actually have come before the court of ap¬ 
peals. 

It is a very limited circumstance. Also, of course, as his confirma¬ 
tion showed before, we were not looking at a Supreme Court Jus¬ 
tice. There was someone to correct any views that he may have 
had, but now, going to the highest Court, that just will not be there 
for us to consider. 

So I really feel that these statements, and these writings, which I 
think by every standard of lawyers were pretty extreme, have to be 
held as expressions of his that should be binding upon him. 

This has been a 5-day job interview for Judge Bork here, and I 
can understand that he would want to back off from them. 

But I close with this observation: if we only had his written and 
spoken word to judge him, it would not even be necessary for the 
Congressional Black Caucus to come over here. There would not be 
a leg for him to stand on in the U.S. Senate. 

The Chairman. Senator Kennedy. 

Mr. Dymally. Mr. Chairman, if I may respond to your question. 

The Chairman. Oh, yes. Congressman Dymally. 


88-374 0 - 89 - 16 



3188 


Mr. Dymally. I was somewhat troubled by Mr. Richardson’s 
statement this morning considering his past record on the question 
of civil rights, a man of great integrity and deep commitment to 
the cause of equality. To suggest that whatever one said in the past 
is purely academic and was a matter of philosophical rambling in 
the classroom and ought not to be taken seriously, I think is very 
troubling. 

How else are we to judge anyone, other than by his statements? 
How do we know that he is really sincere in his professed change? 

The Chairman. Thank you. 

Senator Kennedy. 

Senator Kennedy. Thank you, Mr. Chairman. 

I regret that I was not here when you made your formal presen¬ 
tation, I look forward to reviewing it. I want to extend a warm 
word of welcome to our panelists. I hope their positions will be well 
considered by the members of this panel as well as the Members of 
the Senate. 

In the 25 years that I have been in the Senate, I have had the 
opportunity to work with these individuals, and others that they 
are representing, as we tried to remove the different barriers 
which have denied liberty to many of the citizens of our country. 

We have been dealing with the issues of privacy, equal protec¬ 
tion, the first amendment, the relationship between the presidency 
and the Congress, and other questions during the course of these 
hearings. 

And we have spent some time—and it has been important time— 
considering what this country would look like, if the positions that 
Judge Bork had taken were the positions that had been accepted 
by the Supreme Court. A very different America. 

And I know that Judge Bork has recanted some of the positions. 
I know you can probably remember 1963. In August of that year—I 
still remember it as yesterday—when Martin Luther King spoke at 
the Lincoln Memorial, a stirring address, and, at the very time 
Judge Bork was writing that the Congress did not have the power 
to deal with knocking down discrimination in public accommoda¬ 
tion and transportation, and hotels. He did not believe the court 
could strike down the poll tax. He criticized the opinion requiring 
one man, one vote. 

And on employment, the e limina tion of discrimination in em¬ 
ployment, he did not t hink the Congress had the power to deal 
with that. 

And this would have been a very different America, I imagine. In 
the recent years, we have seen an attempt by an administration, in 
the Bob Jones case, to try and provide the tax credit for a non- 
segregated school. 

I think what you are telling us here is that this battle for equal 
rights and liberties, which this panel and others have been so 
much a part of, is still being fought. In spite of the statements that 
have been made by Judge Bork here, I have been impressed by the 
fact that when he went on public record it was always to criticize. 

We are hard pressed to find public statements or speeches that 
he made in support of the cause of civil rights, and for striking 
down the barriers of discrimination. 



3189 


I have not seen those. They have not been made a part of the 
record. And one could say, well, look, we could differ on this issue, 
on this legalism, or on this issue, every one of those—poll tax, liter¬ 
acy tests, one man, one vote, public accommodations. 

In each one of these tests you could find a legal technicality, why 
they ought not to be struck down, and no really profound state¬ 
ments, comments, a speech, or law review articles about the need 
to really come to grips with these issues. And I find that of con¬ 
cern. 

Let me just ask you, just finally: would the world of America, if 
it was the world of Judge Bork, with the holdings that he had on 
poll tax, one-man, one-vote, the others—what would that look like 
to any of you on this panel? 

Maybe each of you could just give a brief comment, and then we 
will move on, but I would appreciate it. 

Mr. Fauntroy. Thank you, Senator Kennedy. 

The burden of my testimony was to the effect that I am confident 
that the 300 heads of national black organizations, that are a part 
of our national network, are unalterably opposed to the Bork nomi¬ 
nation, or confirmation, for the reason that looking back over the 
past, we feel that he would have opposed—from his stated posi¬ 
tions—all the gains that we have made in the past 25 years. 

And that second, in the recent past, his performance on the cir¬ 
cuit court over the past 5 years has been one in which he has voted 
in 48 of 50 split decisions, to deny access to the courts for individ¬ 
uals who were seeking redress, as we had to seek through the 
courts in our day. 

There is one thing that I, and Martin Luther King, Jr., and Andy 
Young hold in common, and that is that we are ministers, and as 
ministers, we are not unaccustomed to 11th hour conversions, and 
to confirmation conversions. 

And just as I say from Sunday to Sunday at our church, when 
you join the church, please do not apply to be the pastor as soon as 
you have confessed the error of your ways. 

And quite frankly, those of us who lived through the difficult 
period of making those changes do not want to go back. We do not 
want any more encouragement for the kinds of things we have 
seen in Howard Beach and Forsyth County, and elsewhere in this 
country, and I think that is why, the American people, looking at 
the Bork record, and assessing the recantations, and fearing what 
the unknown Bork, the one free of necessity of coming before a 
forum like this, and being confirmed, would be, are opposed to his 
nomination as the black leaders of this country. 

Mr. Conyers. Senator Kennedy, I just wonder sometimes: can’t 
we consider compassion as one of the qualities that we would want 
in an Associate Justice to the Supreme Court? Of course we want 
intellect, we want dedication, we want integrity. 

But the one thing that struck me about these hearings, and I 
should congratulate you on them, gentlemen, because America has 
had a history lesson of great, great importance. 

And the one thing that I have seen to be missing is the element 
of compassion in this man. Of course he has analyzed and theo¬ 
rized, and rethought. He has left so much wiggle room in his recan¬ 
tations, that we have lawyers now going over the proceedings to 



3190 


try to find out just what he did claim that he is not going to do 
again. 

But that element of compassion, to me, was very starkly missing 
in the course of his testimony before you. 

Mr. Dymally. Mr. Chairman, the one and only time I met with 
Judge Earl Warren was at the Martin Luther King Hall at the 
University of California School of Law in Davis, and he said to me 
he thought his most important decision was one man, one vote. 

And I asked him why. He said because it gave black power to ac¬ 
quire more power, and I believe that if Judge Bork were on the 
Court then, he would not have done so. 

If I may, Mr. Chairman, I just want to read two lines here of the 
other members joining the Black Caucus in opposition to Mr. Bork. 

“Joining the Congressional Black Caucus are the World Confer¬ 
ence of Black Mayors; the National Black Caucus of Local Elected 
Officials; the Democratic National Committee, Black Caucus; the 
National Black Caucus of State Legislators; the National Confer¬ 
ence of Black Mayors; the National Bar Association; the National 
Bar Association Judicial Council; The National Caucus of Black 
School Board Members; and the National Association of Black 
County Officials.” 

Senator Kennedy. Thank you. 

The Chairman. Gentlemen, thank you very, very much. I know 
you are busier than we, and for you to come over to this side, I ap¬ 
preciate it very much, and the entire committee appreciates it. 

Mr. Dymally. Thank you very much, indeed. 

Mr. Conyers. Thank you very much. 

Mr. Fauntroy. Thank you very much. 

The Chairman. Thank you. 

Now we have had a bit of a scheduling change here to accommo¬ 
date our colleagues, which we always try to do, House or Senate. 

We have gone from a pro-Bork witness to an anti-Bork panel. We 
will now go to a pro-Bork panel, somewhat out of order, and that is 
the law school deans panel. If they are here—they are not here. Is 
there any pro panel that is here? 

How about the pro-antitrust panel? 

Mr. Bolton. They are not all here yet. The deans, I believe, are 
all here. 

The Chairman. Yes. Why don’t we recess for 5 minutes. 

Mr. Bolton. If they are listening, come on over. 

Senator Metzenbaum. Mr. Chairman, before you do that, may I 
just be heard? 

The Chairman. Yes. 

Senator Metzenbaum. I had heard the special orders on the 
floor, and it is my understanding that special orders on the floor, 
that at 4 o’clock two amendments are coming up, one of which Sen¬ 
ator Kennedy is handling, one of which I am handling. 

I am very anxious to hear both Mr. Frampton and Mr. Ruth, so 
although I understand the Chair’s desire to have this balance back 
and forth, I do not think it is that necessary, and I wonder if we 
could not hear Mr. Frampton and Mr. Ruth. I think their testimo¬ 
ny is very, very significant in this entire hearing, and I would like 
to be present to hear it. 



3191 


Senator Kennedy. At least I would be glad to enter into a con¬ 
sent agreement in terms of time, if it was agreeable to the ranking 
minority member, that we would end that panel in half an hour, so 
that we would have an opportunity to question both of those. 

We had set the time for the two amendments. The chairmen of 
the committee, Senator Nunn and Senator Warner, did so to ac¬ 
commodate us. We had thought that we would be through with 
that witness by 4 o’clock. I would as well like to hear the antitrust 
ones, but they had scheduled that, and- 

The Chairman. All right. Well, let’s bring up Mr. Ruth and Mr. 
Frampton, and we will—it is amazing how quickly staff can move 
those nameplates. We will make this as concise as possible, please. 

Would you stand and be sworn, gentlemen. 

Do you swear the testimony you are about to give is the truth, 
the whole truth, and nothing but the truth, so help you God? 

Mr. Ruth. I do. 

Mr. Frampton. I do. 

The Chairman. Our panel is made up, first, of Henry Ruth. Mr. 
Ruth was Deputy Watergate Special Prosecutor. He is currently 
counsel to UNISYS. I hope I pronounce that correctly. And second, 
Mr. George Frampton. Mr. Frampton is a former Assistant Water¬ 
gate Special Prosecutor and is currently president of the Wilder¬ 
ness Society. 

Gentlemen, welcome, please proceed with your statements, and 
your entire statements will be placed in the record as if read, and 
we would appreciate a summarization, as best as you can make it. 



3192 


TESTIMONY OF A PANEL CONSISTING OF HENRY RUTH AND 
GEORGE FRAMPTON 

Mr. Ruth. Mr. Chairman, thank you. I have no prepared state¬ 
ment, but I thought that I would take a few minutes to describe 
what happened in the Saturday night massacre. 

I was the senior man on the Watergate Special Prosecution Force 
that evening. 

The Watergate special prosecution force had been created in May 
1973 by a charter between the Attorney General and the Special 
Prosecutor. The charter had the force and effect of law and it was 
published in the Code of Federal Regulations. With a certain then- 
unknown irony, it was posted in that section of the regulations fol¬ 
lowing the Office of the Pardon Attorney. 

The charter had the force and effect of law, and in U.S. v. Nixon, 
the Supreme Court so held. We started our work, and it soon 
became clear, when the existence of presidential tapes became 
known, that the tapes were the key to tell whether or not John 
Dean was a liar, or President Nixon was lying. 

On October 19, 1973, John Dean, the President’s counsel, pleaded 
guilty to obstruction of justice. The obstruction of justice included 
conversations with the President of the United States. Those con¬ 
versations were on the nine tapes that were the subject of the sub¬ 
poena that had been upheld by the U.S. district court, and the U.S. 
Court of Appeals for the District of Columbia Circuit. 

The White House had until Friday, October 19, to tell the court 
whether it was going to appeal. Friday came and went. 

Meanwhile, we had been in disputes with Mr. Richardson and 
the White House for 3 months on our jurisdiction. Every time we 
touched upon national security we would get a call that we were 
exceeding our jurisdiction, and that was, in my opinion, because we 
did not yet know about Cointelpro, and the FBI. We did not know 
the full activity of the Plumbers, a group of White House employ¬ 
ees, going beyond the bounds of law, to invade the psychiatrist of 
Daniel Ellsberg. We did not know the full extent of the activities of 
the ten White House employees who subsequently became felons as 
a result of our work. And the White House learned that we would 
acquire that knowledge. 

Also on Friday, October 19, we were told by the White House, 
that we should subpoena no more tapes, and that we were to accept 
transcripts of the nine tapes from John Stennis, who, unfortunate¬ 
ly, had been shot the previous January and was a 72-year-old ailing 
man. 

Archie Cox of course refused, and we were confronted with the 
fact that the tapes, which were the only source of evidence to prove 
whether John Dean was telling the truth, were not to be ours. And 
Archie Cox could not accept that. 

He so told the nation that Saturday morning, October 20, and we 
waited. We wondered who was going to fire Archie Cox, because 
the charter proscribed the firing of the Special Prosecutor under 
these circumstances and that regulation had the force and effect of 
law. 

We knew that the tapes contained evidence of a criminal conspir¬ 
acy between John Dean and the President of the United States, 



3193 


and we did not think anyone in the Justice Department would un¬ 
dertake to fire a prosecutor for securing evidence of a crime. 

So we speculated as to who might do it, and we did not think 
Elliot Richardson would do it, but we had no idea who would. 

About 8 o’clock that evening Mr. Cox called me and said the 
White House had sent a messenger. He called me 15 minutes later 
to say the messenger was lost, and he called me 15 minutes later to 
say he had been fired; and the remaining staff went into our of¬ 
fices. 

From no one could we find out our status. I tried to reach Mr. 
Richardson. He was unavailable. Mr. Ruckelshaus was unavailable. 
Phil Lacovara, the counsel to the Special Prosecutor located Mr. 
Bork, who said we were now part of the Criminal Division in the 
Department of Justice. 

I reached an old friend of mine, Henry Peterson—he still is a 
friend of mine—who was then head of the Criminal Division. 

I said we had Mr. Haldeman coming to the grand jury Tuesday 
and we intended to do that unless I was instructed otherwise. 

He said go ahead. I said we wanted to consolidate the files but 
the FBI had met us at the door and wouldn’t let us move anything, 
wouldn’t let us bring anything in or take anything out. Mr. Peter¬ 
sen said he couldn’t do anything about that. We asked who was in 
charge, and he said, Mr. Bork. 

For 6 or 7 days after that, the whole staff met about four times a 
day. We were totally tenuous in operation. We had no idea what 
was going to happen. We did not know if the President was going 
to produce the nine tapes in court on Tuesday, October 23. We did 
not know if we had authority to pursue more tapes which, after all, 
were at the heart of our investigations because taped conversations 
are the best evidence of all. They prevent a confrontation of one 
witness against another because the tapes tell exactly what hap¬ 
pened. 

Only after a week and a half did we think that we were going to 
be back in business. On Tuesday, October 23, there were 10 im¬ 
peachment bills introduced. There were 15 bills introduced to 
create special prosecutors by law. 

The White House was then totally on the defensive. We were 
afraid during that week that we were being used to perpetuate the 
Office of Special Prosecutor just to forestall the impeachment bills 
and the Special Prosecutor bills in the Congress. 

We knew that Mr. Bork opposed special prosecutors as a concept, 
and I think he opposed them constitutionally, and he did that in 
good faith. He just didn’t believe in them. We knew as well that, 
although we had the nine tapes as a result of the President’s action 
on Tuesday the 23d, President Nixon had issued an order that we 
should not subpoena further tapes. 

We were told by Mr. Bork and Mr. Petersen that we could ask 
for tapes and indeed we renewed old requests that had been pend¬ 
ing when Archie Cox was fired; but we did not know when it came 
time to go to court what the Justice Department believed, i.e., what 
Acting Attorney General Bork believed, about executive privilege 
and about whether the court should order the production of the 
tapes. 



3194 


As a result of the fire storm, the impeachment bills, the Special 
Prosecutor bills, the public reaction which, to us, was the most 
heartening and the congressional support which was overwhelming 
and for which we were all grateful, I think Nixon had to back 
down, and he brought in Leon Jaworski and the rest is known. 

Senator Kennedy. Mr. Frampton. 

TESTIMONY OF GEORGE FRAMPTON 

Mr. Frampton. Thank you, Senator. 

In conformation hearings before this committee in 1982, Judge 
Bork testified that there was never any possibility that the firing 
of Archibold Cox would, in any way, hamper the investigation or 
the prosecutions of the Special Prosecutor's Office. 

According to his testimony in 1982, he was faced with a choice. If 
he refused to fire Archibold Cox, it would create, quote, “a very 
dangerous situation, one threatened the viability of the Depart¬ 
ment of Justice and of other parts of the executive branch.” Those 
are his words. 

On the other hand, he testified, if he moved to contain this dan¬ 
gerous situation by firing Mr. Cox, there would be, quote, “no 
threat to the investigations from the discharge and no threat to the 
processes of justice.” 

And to support this interpretation of his own decisionmaking 
processes that there would be no threat to the integrity of these 
investigations from the firing of Archibold Cox, Judge Bork testi¬ 
fied that the day after the firing he met with Cox’s two top aides 
and Henry Ruth and Phil Lacovara, and personally assured them 
that he wanted the Watergate investigation to continue just as 
before. Those are his words. That we would have complete inde¬ 
pendence and that he would, quote, “guard that independence, in¬ 
cluding our right to go to court to get the White House tapes or 
any other evidence that we wanted from the White House.” Those 
are quotations from his confirmation hearings, his testimony in 
1982. 

In the past 2 weeks, Judge Bork has continued to insist that he 
did his utmost to keep the special prosecution force together and 
spent a lot of time trying to hold us together. 

In the summer of 1973, I was one of several assistant Watergate 
special prosecutors charged with the responsibility for actually pre¬ 
senting witnesses and documents to the Watergate coverup grand 
jury, and I’ve been asked to testify here today, I presume, to pro¬ 
vide some basic factual background from the point of view of those 
people who were actually working on the investigation day to day 
that will help the committee evaluate Judge Bork’s position on 
these issues. 

I think it is important when you consider the question of wheth¬ 
er the firing of Archibold Cox affected the integrity of the investi¬ 
gation to recall that after John Dean testified under a grant of im¬ 
munity in June 1983 that he had participated in a broad coverup 
and that the President had known about and supported that cover- 
up that every one of the President’s highest aides who could cor¬ 
roborate Dean, every single one denied Dean’s testimony. The 



3195 


President, the White House, Mr. Haldeman, Mr. Ehrlichman, Mr, 
Mitchell, Mr. Colson all disputed Dean. 

And after the White House taping system was revealed, Mr. Hal¬ 
deman even testified before the Senate Select Committee that he 
had listened to some of those tape recordings of conversations be¬ 
tween Dean and President Nixon and that the tapes supported the 
President’s version not Dean’s. 

So as of October 15, 1973, John Dean was out on a very long 
limb. It was his word against everybody else’s. Ordinarily that 
would have been the end of it. Ordinarily no one would believe the 
word of a young, ambitious White House lawyer against the Presi¬ 
dent of the United States, but in this very extraordinary situation, 
we had the opportunity to obtain absolutely uncontraverible evi¬ 
dence, evidence not subject to anybody’s recollection or bias, that 
would determine who was telling the truth. It was also the case 
that that evidence was absolutely essential to any successful pros¬ 
ecution of Nixon’s aides. 

So when you talk about the integrity of the investigation, I think 
you have to recall that the tapes were the investigation. The inves¬ 
tigation had no integrity without the White House tape recordings. 
Archibold Cox insisted on getting the tapes. The court of appeals 
held en banc that the grand jury was entitled to the tapes. He in¬ 
sisted on seeing the court decision implemented rather than accept 
a forced compromise, and he was fired to prevent the tapes from 
being disclosed. 

Archibold Cox was not fired because of some personality conflict 
between him and the President. He wasn’t fired because the Presi¬ 
dent wanted to replace him with someone else. He was fired to 
avoid disclosing the evidence. 

In light of that factual background I would submit to the com¬ 
mittee that Judge Bork’s testimony in 1982 that he did not believe 
that the firing of Cox would have any impact on the integrity of 
the investigation is absolutely untenable. 

The second question relates to Judge Bork’s testimony that 
within 24 hours after the firing of Cox he made assurances to us 
that our independence would be maintained and that we could 
pursue tapes and documents from the White House. 

I think as Mr. Ruth set for the chronology the facts demonstrate 
that those assurances were not made and could not have been 
made. It wasn’t until Tuesday afternoon following the Saturday 
night firing that the President’s lawyers stated in court that they 
would turn over the tapes and that the President had reversed 
himself. 

It wasn't until Friday that the President announced that Mr. 
Bork was going to be allowed to choose a new special prosecutor, 
but a new special prosecutor who would not be permitted to seek 
additional tapes and documents. It was not until the following 
Wednesday, October 31, that the President backed down on that 
issue, and he backed down on that issue because Leon Jaworski, his 
pick to replace Cox, went to the White House and told A1 Haig that 
he wouldn’t take the job unless he had at least the same assur¬ 
ances as Cox had had, and that included the right to go after addi¬ 
tional tapes and documents. 



3196 


So what you have here in both respects, I think, is a substantial 
reworking of the facts. More troubling than that reworking of the 
facts is the attitude that the Watergate events reflect an attitude 
of Judge Bork toward unrestrained executive power in the firing of 
Archibold Cox. 

There were three things that stood in the way of Bork’s firing 
Cox. One was a regulation which had the force and effect of law 
and which on its face forbid the firing of Cox without a finding of 
extraordinary improprieties. 

The second and more important was a basic understanding and 
agreement which I think, Senator Kennedy, you pointed out this 
morning was made between the executive branch and the U.S. 
Senate. It was a pact. It was embodied in that regulation, but it 
was an understanding between the two branches of government. It 
was an understanding that the President would permit an inde¬ 
pendent investigation by disinterested persons in the executive 
branch to go after the evidence in no matter where it led. 

And it was that understanding which constituted the foundation 
for the Senate’s confirmation of Elliot Richardson, the appointment 
of Archibold Cox, and the forbearance of the Senate from moving 
forward on its own special prosecutor legislation which was under 
consideration in May 1973. 

Now, Judge Bork’s position on this is that he is not bound by the 
promise. Elliot Richardson made a promise to the committee, and 
he was not bound by that, and I say in all deference to Mr. Rich¬ 
ardson that to treat that promise as a personal undertaking be¬ 
tween Elliot Richardson and a few members of this committee is to 
trivialize it, is to roll the whole Watergate set of institutional prob¬ 
lems up into a personal concern. 

That was not a personal promise. It was an understanding be¬ 
tween two branches of government, and it was just as binding on 
Robert Bork as it was on Elliot Richardson. 

Now, this committee is faced with a very difficult task, to evalu¬ 
ate the entire record of the nominee including his judgment, his 
character, integrity, his views on the Supreme Court ideology. 

No one would a would argue, and I'm certainly not here to argue 
to you today, that the events of Watergate should be dispositive of 
anyone’s decision on this nomination, but I think the events and 
the testimony that Judge Bork has given on this issue in the past 
are part of his record. 

They are a not unimportant part of the record, and they do, at 
least, offer a window, I believe, through which you may view some¬ 
thing about the attitudes and the actions of this man, and the view 
through that window in several respects is a troubling one, both in 
terms of the reworking of the facts and in terms of the attitude 
toward executive power that I think it betrays. 

Thank you, Mr. Chairman. 

[Statement of Mr. Frampton follows:] 



3197 


STATEMENT OF GEORGE T. FRAMPTON, JR. 

FORMER ASSISTANT SPECIAL PROSECUTOR 
WATERGATE SPECIAL PROSECUTION FORCE 
BEFORE THE SENATE JUDICIARY COMMITTEE REGARDING 
THE CONFIRMATION OF JUDGE ROBERT BORK FOR APPOINTMENT 
TO JUSTICE OF THE UNITED STATES SUPREME COURT 
SEPTEMBER 29, 1987 

Mr. Chairman, my name is George T. Frampton, Jr. From June 1973 through 
March 1975 I was an Assistant Watergate Special Prosecutor. I worked on the “cover-up 
case," In the summer of 1973, l was one of several assistant prosecutors responsible for 
presenting witnesses and evidence to the Watergate grand jury. When the White House 
tapes were revealed, l was responsible for selecting the taped conversations that would 
he sought from the White House by subpoena. 

After Watergate, while in private law practice in Washington, D.C., I was involved 
in a number of other special investigations: as Deputy Director of the independent 
Special Inquiry established by the Nuclear Regulatory Commission to investigate the 
Three Mile Island nuclear accident,; as Deputy Independent Counsel to Jacob Stein in the 
1984 investigation of Edwin Meese III; and in 1985 as Special Counsel to the State of 
Alaska in a state grand jury investigation. That investigation resulted in the Alaska 
legislature considering impeachment proceedings against the Governor of Alaska. In 1986 
I left law practice to become President of The Wilderness Society, a non-profit national 
conservation organization with over 200,000 members that works to protect the integrity 
of federal public lands; national parks, forests and wildlife refuges. J have also taught a 
constitutional law course in Presidential Power as a visiting Lecturer at Duke Law School. 

In confirmation hearings before this Committee in 1982, Judge Bork testified that 
"there was never any possibility" that the firing of Archibald Cox "would in any way 
hamper the investigation or the prosecutions of the Special Prosecutor's office." 

(Hearings at 9) According to his 1982 testimony, Bork was faced with a choice: if he 
refused to Tire Cox, it would create a "very dangerous situation, one that threatened the 
viability of the Department of Justice and of other parts of the Executive Branch." (These 
are Judge Bork's own words.) On the otner hand, if he moved to "contain" this situation by 
firing Cox there would be "no threat to the investigations from the discharge and no threat 
to the processes of justice." (Hearings at 10) 

To support this interpretation of his own decision-making processes, Judge Bork 
claimed that the day after the firing of Mr. Cox, he met with Cox’s two top aides, Henry 
Ruth and Philip Lacovara. Bork testified that he personally assured Ruth and Lacovara 



3198 


that he wanted the Watergate investigation to continue "as before," that we would have 
"complete independence" and that he would "guard that independence, including [our] 
right to go to court to get the White House tapes" or "any other evidence [we] wanted," 

Jn the past two weeks. Judge Bork has continued to insist that he had always 
intended that the Watergate investigation would go on after the Saturday Night Massacre 
just as before, "in the same way" (September 16 at p. 7); that he personally "did his utmost 
to keep the Special Prosecution Force together" (id. at 8) and that he "spent a lot of time 
trying to hold the Watergate Special Prosecution Force together." (September 19 at p. 82) 

I have been asked to testify today, I assume, to provide some basic background 
facts from the point of view of those actually charged with conducting the Watergate 
cover-up investigation on a day-to-day basis, which may assist the Committee in evaluating 
Judge Bork’s position on these issues. 

First, the question of whether the Tiring of Archibald Cox posed any threat to the 
integrity of the Watergate investigation. 


In June 1973, John Dean testified under immunity in televised Senate hearings that 
President Nixon participated in a Watergate cover-up. The President and every one of his 
close aides who could corroborate Dean — former Attorney General Mitchell, H.R. 
Haldeman, John Ehrlichman, Charles Colson — all disputed Dean's version of events. In 
July 1973, the existence of the White House taping system was revealed. H.R. Haldeman 
testified that he personally had listened to tapes of some of the key Dean-Nixon conversa¬ 
tions. The tapes themselves, Haldeman claimed, showed that the President, not Dean, was 
teiling the truth about those meetings! 

By October, resolution of this conflict in testimony was the critical factor to com¬ 
pleting the Watergate investigation. Ordinarily, no one would have believed a young, 
ambitious White House lawyer against the word of the President of the United States and 
all of his closest advisers. But in this extraordinary time, there was evidence available to 
us — in the form of the White House tapes — absolutely incontrovertible evidence to resolve 
these issues. Obtaining the Nixon tapes therefore was a prerequisite to any successful 
prosecution of former high-ranking White House aides. 



3199 


The Watergate Prosecutor insisted on the production of this evidence for the grand 
jury. The Court of Appeals, sitting en banc, agreed that the grand jury was entitled to 
have it. When the Prosecutor said he wanted to implement the Court's order, rather than 
accept an enforced compromise, he was fired. 

It is important to remember when talking about the "integrity" of the Watergate 
investigation and whether it was affected by the removal of Mr. Cox that the tapes were 
the investigation. Without the tapes, the investigation was deprived of any integrity. To 
put it another way, it was our ability to obtain incontrovertible evidence of possible 
criminal conduct — the only way to resolve the conflicting testimony about the culpability 
of the President's top assistants — that gave the investigation integrity. Without that, it 
had none. Without the tapes, there could have been no prosecutions. 

The firing of Archibald Cox did not result from a personality dispute between him 
and the President, it wasn't simply that the President didn't like Mr. Cox, or that he 
wanted to replace him with someone else. Cox was fired in order to prevent the Prosecutor 
and the grand jury from getting the tapes: the only evidence that coutd sustain successful 
prosecutions. 

Viewed against these facts. Judge Bork's protestations that his firing of Archibald 
Cox posed no "threat" to the integrity of the investigation or to the legal process and did 
not pose any possibility of "hampering" that investigation, are plainly untenable. 

Second, the chronology of events proves beyond dispute that the reassurances 
Judge Bork testified in 1902 that he gave the Watergate prosecutors after the Cox firing, 
of continued independence for the prosecution and ability to continue to pursue White 
House tapes, in fact were never given. 

Judge Bork testified that those assurances were given on Sunday or Monday, after 
the Saturday night firing* To the contrary, it was not until Tuesday afternoon that the 
President's lawyers announced in court — following stern instructions by Judge Sirica that 
morning to the Watergate grand jury telling the jurors they were still in business — that 
the President had reversed himself and would turn over the subpoenaed tapes. This 
reversal followed not only a firestorm of public outrage but introduction of many impeach¬ 
ment resolutions that morning in the House of Representatives. 



3200 


Indeed, on Tuesday afternoon Bork formally abrogated the departmental regulation 
establishing the Watergate Prosecution Force, and abolished our office. This action 
followed the filing of a lawsuit announced the previous day challenging the firing of Cox 
as illegal and plainly inconsistent with that regulation* 

On Wednesday, Bork held a news conference at which he defended his actions. It 
was not until Friday that the President surprised the country by announcing that Bork 
would be allowed to appoint a new Special Prosecutor — albeit one who would not be 
permitted to seek any new White House tapes or other documentary evidence* 

And it was not until the following Wednesday, October 31, when Leon Jaworski 
told Alexander Haig that he would not agree to become the new Special Prosecutor unless 
he were guaranteed the right to seek additional White House tapes, that the President 
capitulated on this issue as well. 

In short, in his 1982 testimony. Judge Bork telescoped assurances that were 
grudgingly agreed to by the President himself over a period of about 12 days — in the 
face of overwhelming pressure from the Congress and the country — into a mere 24 hours. 
And he represented that those assurances were initiated by Judge Bork personally. 

In light of the indisputable factual chronology, how does one evaluate Judge Bork's 
claim that the choice with which be was faced was between serious danger to the Justice 
Department, on the one hand, and no real damage to the Watergate investigation on the 
other? That he simply chose the lesser of two evils* 

I would suggest to the Committee that another interpretation is possible, based on 
the facts. The choice Judge Bork was faced with was simple, but different. On the one 
hand there was the force of raw executive power: President Nixon ultimately had the 
power to find or appoint someone, at some point, as Acting Attorney General who would 
be willing to extinguish the Watergate investigation, in order to prevent the tapes from 
being disclosed. 

On the other hand, there was the orderly process of law. That process included at 
least three things that stood in the way of the Tiring of Cox. 

First, there was a valid and binding departmental regulation that on its face forbid 
the firing without a prior finding of "extraordinary improprieties," and also forbid the 



3201 


office from being abolished until its work had been completed or the special prosecutor 
had agreed. 

Second, there was a fundamental understanding — a pact — between the Executive 
Branch and the Senate. That fundamental agreement was embodied not only in the regula¬ 
tion establishing the Watergate Prosecution Force but also in the confirmation of Elliot 
Richardson and appointment of Cox. It was an agreement that the President would consent 
to, and honor, a fully independent criminal investigation, to be conducted by a disinterested 
individual, to obtain whatever evidence was necessary to uncover the true facts about 
actions by White House officials in Watergate. 

Judge Bork has said on a number of occasions that he felt he was not bound by the 
’•promise' 1 that had been made by Attorney General Richardson to the Senate to uphold 
Cox's independence — as though this were some kind of personal undertaking. With all 
deference to Mr. Richardson, the "promise" of an independent investigation was not his 
promise at all. It was the President's promise, made through Mr. Richardson, a representa¬ 
tion on behalf of the Executive Branch. And it was an undertaking made for the purpose 
of ensuring that an Attorney General could be confirmed and that the Senate would not 
pursue proposals that were being pressed during May 1973 for legislation authorizing the 
courts to appoint their own special prosecutor to look into Watergate. 

For Judge Bork to claim that this understanding between the two branches of 
government was merely a personal "promise" to which he was really not a party is to 
trivialize the true situation to an extreme. 

Finally, there was the principle of the grand jury's disinterested and objective right 
to every man's evidence, the accepted process by which evidence of wrongdoing in our 
system may be adduced no matter how powerful the accused. 

It did not take Acting Attorney General Bork long, at least not more than ten 
minutes by his own admission, to make the decision in favor of pure Executive power. 

The existence of the regulation, the importance of the underlying understanding between 
the Senate and the Executive Branch, the obvious abrogation of the grand jury process — 
none of these issues or problems seemed to trouble the Acting Attorney General in the 
slightest. Nor do they today. 



3202 


On Tuesday following the Saturday night massacre, a lawsuit was filed by Ralph 
Nader (later joined by members of Congress) challenging the firing of Cox. A federal 
district judge ruled in November 1973 that the firing violated the charter regulation. 

Ten months later, after President Nixon had resigned, Bock's appeal of the district court 
decision was held moot by the Court of Appeals. As I understand it. Judge Bork has 
advanced two somewhat conflicting arguments in response to the reasoning of the court 
in this case. 

First, he has argued that on that Saturday night he could not find a secretary to 
type a two-sentence order revoking the regulation, so that his action was only illegal for 
a couple of days — a mere technicality. (Notably, the letter firing Mr. Cox, signed 
Saturday night, was itself typed.) 

Second, Judge Bork has argued that executive branch departmental regulations 
are binding only on members of the department, and that a direct Presidential order to 
a cabinet member either overrides the regulation or insulates the cabinet member from 
having to obey the regulation. 

I think it may be worth pointing out, since no one else in these hearings has done 
so to my knowledge, that no such doctrine of executive power has ever been identified 
by anyone. I would suggest that none exists: that it was made up by Judge Bork after the 
fact to justify his act in this particular situation. 

It is this kind of imaginative creation of ’'new' 1 doctrine to justify the exercise of 
unrestrained executive power that we depend upon the United States Supreme Court to 
view with great scepticism and, where appropriate, to stop dead in its tracks. 

* * * 

In 1973, Judge Bork justified his willingness to fire Mr. Cox by saying, in essence, 
that the President would eventually find someone to do it, and it might as well be Bork. 

In 1982, Judge Bork characterized his decision as a difficult balancing of relative 
harms, and claimed that he never thought his action would impair the integrity of the 
Watergate investigation. 



3203 


In 1987, he has practically taken credit for keeping the Watergate Prosecution 
Force intact. His reputation depended on it, he has testified. (Indeed, by Monday or 
Tuesday following the Saturday Night Massacre and the accompanying firestorm of public 
outrage and congressional condemnation, he probably realized that his reputation did 
depend on President Nixon backing down.) According to Judge Bork, it would seem that 
his highest priority was to work diligently to ensure that the Special Prosecution Force 
maintained its independence and carried on its work unimpaired. 

This is not a case of Judge Bork reworking his views of constitutional doctrine. 

This is a case of reworking the facts. 



3204 


Senator Kennedy. Thank you very much, Mr. Ruth, and Mr. 
Frampton. 

In recalling the time of the development of the Special Prosecu¬ 
tor, let me say that your understanding of that history, I can say as 
a member of the Judiciary Committee at the time, was certainly 
the view of all of the members of the panel. 

Otherwise, just a personal comment. With all respect, and I have 
great respect for Mr. Richardson, his understanding really defies 
both logic and understanding given the kind of climate and atmos¬ 
phere which you and Mr. Ruth have described so well here before 
the committee. 

Just a few questions. Mr. Ruth, we are obviously pleased too 
have you today. As you testified, those tapes were at the heart of 
your investigation. The question has arisen regarding whether 
Judge Bork, after Mr. Cox was fired, told you that you could seek 
the tapes. 

Now, in his testimony before this committee at his confirmation 
hearing for the circuit court in 1982, Judge Bork testified that on 
Sunday afternoon, after he fired Mr. Cox, he met with you, Mr. Pe¬ 
tersen, Mr. Lacovara, and in Judge Bork’s words, “I told them I 
wanted them to continue as before with their investigation and 
with their prosecutions, that they could have complete independ¬ 
ence, and that I would guard that independence, including their 
right to go to court to get the White House tapes or any other evi¬ 
dence they wanted. Therefore, I authorized them to do what they 
had been doing under Mr. Cox.” 

Would you tell the committee please whether that statement is 
accurate? Did Judge Bork assure you, as he testified, that the office 
could go after the same tapes that Mr. Cox had just been fired for 
pursuing? 

Mr. Ruth. I think, Senator, Phil Lacovara—Phil was counsel to 
the Special Prosecutor—Phil and I met with Henry Petersen from 
the Criminal Division and Mr. Bork, I think it was Monday night, 
October 22. It was a very tense meeting which quickly went down¬ 
hill, and rather than have it collapse completely, we adjourned it 
shortly after it began. 

The only subject of that meeting that we actually got to, aside 
from an irrelevancy, was whether we should show up Tuesday 
morning and continue our work, and the answer to that was yes. 

No one in that room had any power, in my opinion, to do any¬ 
thing about the tapes. Mr. Bork was entirely irrelevant. The show 
was being run by the White House, and indeed, the President 
hadn’t even decided Monday night whether or not to produce the 
nine subpoenaed tapes the next day in court on Tuesday afternoon. 

So we assumed that Mr. Bork agreed with the President that the 
President had complete power to order Bork to fire Cox without 
abolishing the regulation, because that’s what happened. 

And we assumed that Mr. Bork agreed with the President on 
that executive privilege extended to Presidential conversations 
even when those conversations were part of a criminal conspiracy; 
and we had to assume that other than proceeding from day to day, 
no one in that room on that Monday night knew what was going to 
happen the next time we subpoenaed a tape and the court upheld 
it and the President said no. 



3205 


Mr. Bork never told us his position on that issue. 

Senator Kennedy. That’s exactly what I want to understand. He 
testified in 1982, “including their right to go to court to get the 
White House tapes or any other evidence they wanted.” 

Mr. Ruth. That subject of tapes. Senator, didn’t come up until 
about the following Wednesday when we all agreed we would 
renew an old letter request for tapes and for documents particular¬ 
ly that had not yet been produced by the White House. 

Senator Kennedy. Let me just move on to ask about a second 
factual issue that has arisen. According to a memorandum pre¬ 
pared by former Transportation Secretary, Mr. Coleman, Judge 
Bork told Mr. Coleman that, quote, “immediately after firing Mr. 
Cox, Judge Bork set out to find a new Watergate Special Prosecu¬ 
tor.” 

But in his testimony before the committee during these hearings, 
Judge Bork said that at the time of the firing, and I quote, “We did 
not contemplate a new Special Prosecutor. We contemplated that 
the investigations would be brought effectively by Mr. Ruth and 
Mr. Lacovara in their old building with the same staff in the same 
way. There was no contemplation of a new Special Prosecutor until 
it became clear that the public wanted one.” 

Then he continued. “We did not initially contemplate a new Spe¬ 
cial Prosecutor until we saw that it was necessary because the 
American people would not be mollified without one/’ 

Would you tell us please which of Judge Bork’s statements is ac¬ 
curate? His statement that he immediately set out to find a new 
Special Prosecutor or his statement that he did not do so until the 
American people indicated that they wouldn’t be mollified without 
one? 

Mr. Ruth. I think the latter. Senator. The following Tuesday Mr. 
Bork abolished the Watergate special prosecution force, 3 days 
after the massacre, and then in the ensuing month he testified 
against a special prosecutor bill because he thought it had too 
many constitutional problems. 

We never thought that Mr. Bork was in favor of a new Special 
Prosecutor, and the only reason we were staying as a unit was be¬ 
cause we thought that the public and the congressional reaction 
were going to force Mr. Nixon to appoint a special prosecutor. 

Senator Kennedy. Just a final thought, and then I'll conclude 
my questioning. So isn’t it fair to say that at the time that Mr. Cox 
was fired there was absolutely no assurance either that the office 
could go after the Nixon tapes or that there would be a new Spe¬ 
cial Prosecutor, and if the American people had not erupted into 
the famous fire storm after the firing, it is conceivable, is it not, 
that your investigation would have been left under the control of 
the Justice Department, stripped of all authority to pursue evi¬ 
dence of presidential wrongdoings? 

Mr. Ruth. I think that, but for the firestorm, Senator, the reac¬ 
tion of the Justice Department and the White House was to keep 
us within the Criminal Division. 

Senator Kennedy. The Senator from South Carolina. 

Senator Thurmond. Thank you. Mr. Ruth, Mr. Frampton, we are 
glad to have you here. Former Attorney General Richardson testi¬ 
fied today. Did you hear his testimony? 



3206 


Mr. Ruth. Yes, sir. 

Senator Thurmond. I see it in his testimony—he said, Robert 
Bork’s actions in the aftermath of the Cox dismissal contributed to 
the continuation and ultimate success of the Watergate investiga¬ 
tion. He took immediate steps to keep the Watergate Special Pros¬ 
ecution Force together and insisted that it retain responsibility for 
the investigation. Now, Mr. Ruth, earlier today, former Attorney 
General Eliott Richardson testified that Judge Bork did nothing 
improper or unethical when he carried out the firing of Archibald 
Cox. Additionally, Mr. Richardson stated that Judge Bork’s actions 
in this matter were in the best interests of the Department of Jus¬ 
tice and of the country. I just want to call attention to those state¬ 
ments that he made. 

Mr. Ruth. Yes, sir. The way I heard Mr. Richardson’s testimony 
was that he really did not know what happened after he left. I 
think he said he had second- and third-hand accounts and from 
those second and third-hand accounts, he thought that Mr. Bork 
acquitted himself well. In fact, Senator, I just do not want history 
rewritten just to confirm a Supreme Court Justice. The fact is, Mr. 
Bork was irrelevant to our continuation. 

Senator Kennedy. Was what? 

Mr. Ruth. Irrelevant. He had nothing to do with it. We saw him 
as not a factor in any decision that we were making and we saw 
him as powerless to cause anything to happen. I do not see any 
reason to rewrite that history. 

Senator Thurmond. Mr. Ruth, on July 2, 1987, the Los Angeles 
Times quoted you as follows: “Cox's deputy, who later became the 
third of the Watergate Special Prosecutors said he believed Bork 
acted honorably throughout the affair and cited Bork’s selection of 
Houston lawyer, Leon Jaworski, an aggressive counsel to replace 
Cox. Ruth, asked if he though ambition for a possible spot on the 
Supreme Court might have led Bork to follow Nixon’s order said, 
even I am not that cynical. He did not act that way. Clearly, he did 
not march in lockstep with the White House concept to abolish us 
and make our lawyers part of the Justice Department.” Is that 
quoting you correctly? 

Mr. Ruth. Probably, Senator. If you want me to explain it—I 
have never thought that Mr. Bork acted in any way other than 
with good intention. I just happen to believe that he believes in the 
totality of executive power and executive privilege. I do not think 
he selected Leon Jaworski, however. That part of the quote mysti¬ 
fies me a little bit. Mr. Bork met with our staff the Wednesday fol¬ 
lowing the Saturday night massacre and a number of us pressed 
him, is there going to be another Special Prosecutor? Are you look¬ 
ing for another Special Prosecutor? We got no answer. 

Senator Kennedy. That was when? 

Mr. Ruth. That was Wednesday after the Saturday night massa¬ 
cre, Senator Kennedy. 

Senator Thurmond. I believe on Monday, he called Mr. Dallin 
Oaks and asked him to recommend a prosecutor. Are you familiar 
with that? 

Mr. Ruth. No, sir. 

Senator Thurmond. Mr. Oaks testified to that yesterday. 



3207 


Mr. Ruth. Mr. Bork had no power to appoint a Special Prosecu¬ 
tor then. The White House did not decide that, Senator, until 
Friday or Saturday. 

Senator Hatch. No, but what the testimony was—if I could help 
Senator Thurmond—what the testimony was is Dallin Oaks, who 
was former president of Brigham Young University, who was the 
executive director of the American Bar Foundation in his career, 
professor at the University of Chicago- 

Mr. Ruth. I know Dallin Oaks. 

Senator Hatch. I know you know him. You have confidence in 
his veracity, I take it. 

Mr. Ruth. I am not aware that he is a prosecutor, sir. I do have 
confidence in his veracity. 

Senator Hatch. All right. Dallin Oaks came and said that Robert 
Bork called him Monday morning, his best recollection was, and 
said I am in a bind. I have got to find a Special Prosecutor and I 
think it has got to be somebody who is a former president of the 
American Bar Association and I have got to call my friends who I 
know will give me the straight scoop and so I am calling you 
among others. 

He suggested Lewis Powell, who had just been put on the Su¬ 
preme Court and he said there is only one other and that is Leon 
Jaworski. He said, well, I have had him recommended by others as 
well, which indicated that he had been calling ever since the firing 
of Cox to try and see just what he could do to have a very compe¬ 
tent, good prosecutor. Of course, as we all know, Jaworski was 
chosen and went on to become, I think, a very historic good figure 
because of the work he did on Watergate. So, if you missed that 
yesterday, you missed a pretty good thing. 

Senator Thurmond. Are you familiar with that, Mr. Ruth? 

Mr. Ruth. No, sir. The issue was not just the Special Prosecutor, 
as you know. Senator Hatch. 

Senator Hatch. I know that. 

Mr. Ruth. The issue was the power of the next Special Prosecu¬ 
tor. The issue was, could that Special Prosecutor subpoena Presi¬ 
dential tapes, and if the court ordered the tapes to be produced, 
would the Attorney General stay with us and say, yes, the law re¬ 
quires that production. 

Senator Hatch. And Jaworski did? 

Mr. Ruth. Excuse me, sir. 

Senator Kennedy. Let the witness finish. 

Senator Hatch. Sure, sure. 

Mr. Ruth. Mr. Bork, on Saturday night, fired Archibald Cox for 
doing just that. I had no reason to believe that Mr. Bork had un¬ 
dertaken a conversion in 48 hours and suddenly believed that Mr. 
Cox was now right and all we needed was another body to do the 
same thing. 

Senator Hatch. With all due respect, that is the significance of 
the Dallin Oaks’ testimony, because this impeccable person has tes¬ 
tified that Bork was going to do exactly that and to put it the way 
it really was, what Bork wanted to do was find an equivalent Spe¬ 
cial Prosecutor because the President had asked to have Cox fired, 
who would take his place and then the facts are that Bork backed 
him and so did everybody else and the matter became resolved be- 



3208 


cause of that Special Prosecutor. So, to try to imply that Bork was 
not doing right, I think is wrong. 

Mr. Ruth. I am not trying to imply anything. We met with Mr. 
Bork that Monday- 

Senator Kennedy. Well, let both Mr. Ruth and Mr. Frampton 
make a brief comment, if they could, and then the time- 

Senator Thurmond. Any other statements you want to make? 

Mr. Ruth. Well, I just wanted to say that Monday night, if that 
happened on Monday, we met- 

Senator Hatch. Monday morning, if- 

Senator Kennedy. Let the witness finish his answer. We will 
insist that the witness finish without interruption. Would Mr. Ruth 
respond and then Mr. Frampton? 

Senator Thurmond. Are you through, Mr. Ruth, or not? 

Mr. Ruth. No, sir. 

Senator Hatch. Go ahead. We will listen. 

Mr. Ruth. If that happened between Mr. Bork and Mr. Oaks on 
Monday morning, it surely would have been good to know that on 
Monday evening, when Mr. Locavara and I met with Mr. Bork for 
our first assurance of what we were, what we were going to 
become, and what was our power to be. At no time did Mr. Bork 
tell us that there was a contemplation of another Special Prosecu¬ 
tor and if he had told us, we would not have been meeting four 
times a day to save the Watergate Special Prosecution Force. 

Senator Kennedy. Mr. Frampton. 

Mr. Frampton. If Judge Bork was looking for a new Special 
Prosecutor on Monday after the firing, then he misrepresented his 
views to us on Wednesday, when he met with the prosecutor’s staff 
and told us that neither he nor the Justice Department would sup¬ 
port a new Special Prosecutor. On Friday, when the President an¬ 
nounced that he would be out looking for a new Special Prosecutor, 
in his press conference he said that one of the conditions on the 
new Special Prosecutor, the key condition, was that the new Spe¬ 
cial Prosecutor would not be permitted to seek new tapes and docu¬ 
ments. 

I do not think there is any dispute. I can recall Leon Jaworski 
telling us himself about this many months later, that it was his in¬ 
sistence, his insistence on acceding to the same authority, indeed, 
more authority after consultation with Congress, more authority 
than Cox had, that is a condition of his taking the job, that Alexan¬ 
der Haig went to see the President and came back and told him 
that the President would back off on that and would permit Jawor¬ 
ski to have the same independence that Cox had. That did not 
happen until 12 days after the Saturday night massacre. 

Senator Kennedy. I just want to finally mention this. Do you 
find it strange that he is talking to the White House on Monday 
and then issuing the order to abolish the Special Prosecutor’s office 
on Tuesday? 

Mr. Frampton. Could I respond to that, Senator? 

Senator Thurmond. Just a minute now. You cut in on me and so 
has Senator Hatch. Just let me get through. I had the floor. 

Senator Kennedy. Can he- 

Senator Thurmond. No, just let me get through. I will be 
through in a minute. I had the floor. I only have this statement to 



3209 


make. Mr. Richardson stated that Judge Bork’s actions in this 
matter were in the best interests of the Department of Justice and 
the country. Do you agree with that or not? 

Mr. Frampton. I am sorry, Senator, I did not hear the entire 
quote. 

Senator Thurmond. I will repeat it. Mr. Richardson, the former 
Attorney General, testified here this morning, stated that Judge 
Bork’s actions in this matter were in the best interests of the De¬ 
partment of Justice and the country. I just asked you a simple 
question. Do you agree with that or not? 

Mr. Frampton. I cannot answer that yes or no. Senator. I would 
characterize Judge Bork’s role, in the weeks alter the Saturday 
night massacre, as basically a leaf, floating on an ocean during a 
hurricane. The outcome of the integrity of the investigation and 
the prosecution was going to be shaped by events far beyond his 
control and was shaped by events far beyond his control. As Mr. 
Ruth said, he was an irrelevant player in this. 

Senator Thurmond. Well, you would not contradict his state¬ 
ment then, would you? 

Mr. Frampton. I would, yes. 

Senator Thurmond. Well, that is what I asked you. Whether you 
agreed with him or not. 

Mr. Ruth. No, sir. 

Mr. Frampton. No, sir. 

Senator Thurmond. That is all. Senator Kennedy. 

Senator Kennedy. Now, can you answer my question? I will just 
ask this one and then I will have to go to the floor. Do you find it 
strange that evidently he is talking to the White House on Monday 
about a Special Prosecutor and then Judge Bork abolishes the 
whole office on Tuesday? 

Mr. Frampton. It is strange. Senator, if that is the true sequence 
of events. There was a lawsuit filed Tuesday morning and had been 
announced Monday. 

Senator Kennedy. I would ask that a copy of that particular 
copy of that particular abolishment of the Office of Watergate Spe¬ 
cial Prosecutor Force, issued on that particular day, be made part 
of the record. 

[Above-mentioned copy follows:] 



3210 


ABOLITION Or 
WSPr IN OCTOBER 197] 

Tm i 23 — Juniet vl Admini.stii vtion 

Cm vrri.it I — Du'iiitmiat of Justici. 

PvitT 0—Otlli KN'IZ VTIO.N OF TIIK D H1‘ VI 1 TM KNT OF JttsTICU 

Ordi r No 510-73 

\noi.isjiMi nt oh Ohhui of WvriimvTi: Spwiii. Pho.sj <tth>n Font-h. 

1’liis ordiT abyfohes the Other of Watergate Special Prosecution Force. The 
fmiclioiis of llial Office revert to tfie Criminal Division. 

By virtue of the authority vested if i me by 21! U.S.C. 50!), 510 and 5 U.S.C-. 
501, the Office of Watergate Special Prosecution Force is abolished. Accordingly, 

Part 0 of Chapter 1 of Title 20, Code of Federal Regulations, is amended as 
follows 

t Section it 1 of Subpart A, which h'ts the orgam/ulninal units of the Depart¬ 
ment. is amended by deleting “Office of Watergate Special Prosecution Force.’’ 
2 Subpart (1-1 is revoked. 

Order No 517-73 of Mav 31. 197.3, Order No 510-73 of May 31, 11173, Order 
No 525 73 of Julv )!, 1973, and Order No 531-73 of July 31, 1073, are revoked. 
Tin- order i- elTcclive as of October 21, 1073. 

IS/ Roukrt II. Bork, 

Acting Attorney General. 

Date Oct 23. 1973. 



3211 


Mr. Ruth. Senator, he had to abolish us in order to make the 
Cox firing legal. 

Senator Kennedy. Well, is it strange that if he is thinking about 
it on Monday, that he going to continue the office, that he would 
abolish it on Tuesday? 

Mr. Ruth. I do not think he believed in Special Prosecutors, sir. I 
think it was a reaction to the firestorm and the impeachment bills 
and the Special Prosecutor bills. I think it was a fairly pragmatic 
reaction. 

Senator Metzbnbaum. Mr. Chairman, I have been very patient 
while the distinguished minority member and Senator Hatch have 
taken far over the normal time and I may take a little bit over 
myself, under the circumstances. I think it is important to point 
out that the statement that has been urged upon this hearing 
today by the Senator from Utah that Judge Bork immediately 
acted to find another prosecutor need not be contradicted only by 
Mr. Frampton and Mr. Ruth. It is contradicted directly by Judge 
Bork. 

I asked him the question: “But you had no guarantee from Presi¬ 
dent Nixon at the time you fired Mr. Cox, that there would even be 
another Special Prosecutor. Is it not a fact that the decision to ap¬ 
point a new Special Prosecutor was not made until several days 
later after the President had provoked a firestorm of controversy 
around the country.” And Judge Bork testified that is right: “Ini¬ 
tially, we intended to leave the Special Prosecution Force intact, 
but not to appoint a new Special Prosecutor. 

“We did not, initially, contemplate a new Special Prosecutor 
until we saw that it was necessary because the American people 
would not be mollified without one.” So, when it is suggested that 
the next day on Monday, that he was looking for a new Special 
Prosecutor, I think it borders on the realm of absurdity. It just is 
not in accordance with the facts. 

Mr. Frampton, I would like to ask you. Have you spoken with 
any of your former colleagues in the Watergate Prosecution Force, 
since Judge Bork has testified dining these hearings and if so, 
what was their reaction? 

Mr. Frampton. Other than Mr. Ruth, I will recount the only re¬ 
action that I have had, Senator. I did not watch Judge Bork testify 
the week before last, but in the conclusion of his testimony on Sat¬ 
urday, in answer to questions that were asked by Senator Kennedy, 
he did advert to the Watergate issue and he characterized his ac¬ 
tions as being one of working hard to keep the Special Prosecution 
Force together. I have a very close colleague who saw that on tele¬ 
vision and telephoned me and he was apoplectic about it. He said, 
and I think that the history of the testimony shows, as I said 
before, a re-working of the facts. 

In 1973, Judge Bork said, in essence, the President was going to 
find someone to fire Cox and it might as well be Bork. In 1982, in 
his confirmation hearings before this committee, the testimony I 
saw for the first time 6 weeks ago, he said, well, I was faced with a 
very difficult balancing of relative evils. On the one hand, the Jus¬ 
tice Department might collapse. On the other hand, if I fired Cox, 
there would not be any threat to the integrity of the investigation, 
and I chose the lesser evil. By 1987, he is claiming to be the hero of 



3212 


Watergate. That is the reaction that I have had from my col¬ 
leagues. 

Senator Metzenbaum. Mr. Ruth, during Judge Bork’s testimony 
in this committee on Saturday, September 19, he stated “I have re¬ 
peatedly explained that I was the last man in the Department who 
could hold the Department together. I spent a lot of time trying to 
hold the Watergate Special Prosecution Force together. It was held 
together. It went forward with the results we all know.” The Amer¬ 
ican Bar Association’s summary of its September 2 interview states 
“Judge Bork said that he had gone to great lengths to assure that 
none of the staff resigned.” Is that an accurate characterization of 
what happened, in your view? 

Mr. Ruth. Judge Bork and Henry Peterson told us to continue 
with our work, Senator. Judge Bork was irrelevant to whether our 
staff was going to stay together because we had no way of relying 
on anything he said at the time because he fired Archie Cox for 
pursuing evidence of criminal conversations by the President of the 
United States. The staff held together because of the integrity of 
the staff and the support of the public and the Congress in the 
hope that a new Special Prosecutor would come along. Judge Bork 
was neither a positive nor a negative in that respect. We did not 
pay any attention to him, Senator. 

Senator Metzenbaum. Were you or any member of the Water¬ 
gate Special Prosecution Force consulted before Judge Bork fired 
Mr. Cox? 

Mr. Ruth. Sir? 

Senator Metzenbaum. Were you or Mr. Lacovara or any member 
of the Watergate Prosecution Force consulted before Judge Bork 
fired Mr. Cox? 

Mr. Ruth. No, sir. Mr. Bork made no inquiry about the state of 
the evidence or whether the firing would interfere with our investi¬ 
gation nor did anyone. 

Senator Metzenbaum. Mr. Ruth, we all know the Watergate in¬ 
vestigation eventually was allowed to proceed and the American 
people were assured that no person, even the President, is above 
the law. But how things turned out is not the crucial question for 
us. The question for us in evaluating Judge Bork is whether, at the 
time these events unfolded, the entire investigation was put in 
jeopardy. Do you believe that the firing of Mr. Cox put at risk the 
very fundamental principle of a complete and unhindered investi¬ 
gation of the White House and the President? 

Mr. Ruth. Certainly, Senator. Senator, could I just add to that? I 
do not think either of us are saying that Bob Bork was an evil man 
at the time. What we are saying is we thought he believed in total 
executive power, the power of the President to do whatever he 
wanted and to take privilege whenever he wanted it. 

That, in fact, is inconsistent with a criminal investigation of the 
President of the United States who has held conversations with his 
own lawyer, which are criminal in nature, and in furtherance of a 
criminal conspiracy and which exist on tape. The idea that execu¬ 
tive privilege could possibly exist in that situation would never 
cross my mind. We thought it had crossed Mr. Bork’s mind and he 
believed that privilege would prevail. That is why we could not rely 
on him. 



3213 


Senator Metzenbaum. Just one last short question. As I under¬ 
stand, you are general counsel for one of the major corporations of 
America at the present? 

Mr. Ruth. No, sir. 

Senator Metzenbaum. Pardon? 

Mr. Ruth. No, sir. I do not want to be general counsel. That in¬ 
volves administration. I am special litigation counsel at UNISYS 
Corp. However, I am here speaking for myself. 

Senator Metzenbaum. You sire what? You are litigation counsel 
for UNISYS, is that right? 

Mr. Ruth. Special litigation counsel, sir. I have a number of dif¬ 
ferent duties. 

Senator Metzenbaum. Thank you very much. And you are head 
of the Wilderness Society? 

Mr. Frampton. Yes, Senator. 

Senator Metzenbaum. Thank you, sir. 

Senator Kennedy. Senator Hatch. 

Senator Hatch. Thank you. Senator Kennedy. Let me just say at 
this time, I would like to submit for the record the statements of 
Philip A. Lacovara and Henry Peterson and an affidavit by Ralph 
K. Winter, if that is all right. 

Senator Kennedy. They may be a part of the record. 

[Submissions for the record follow:] 



3214 


Statement of 

PHILIP A. LACOVARA 

FORMERLY COUNSEL TO THE WATERGATE SPECIAL PROSECUTOR 

During the hearings on the nomination of Judge Robert 
H. Bork to be an Associate Justice of the Supreme Court# a 
number of questions have arisen about his role in the so-called 
"Saturday Night Massacre" and the events immediately following 
it. Since I was a personal participant in many of the events 
about which Judge Bork has been examined# I want to make 
certain that the record accurately reflects what occurred# as I 
have already reported to the Staff of the Judiciary Committee. 
In sum, the substance of Judge Bork's testimony# as I 
understand it, accurately reflects the tone and direction of 
his statements to the senior staff of the Watergate Special 
Prosecution Force in the hours and days after his dismissal of 
Special Prosecutor Archibald Cox. 

I 

From early July 1973 until the end of September 1974# 

I served as Counsel to the Special Prosecutor, Watergate 
Special Prosecution Force. In that role# I was the lawyer 
primarily responsible for advising Special Prosecutor Archibald 
Cox and then his replacement, Leon Jaworski, on legal and 
policy matters. I was also in charge of litigation of these 
issues. In particular, I was responsible for advising the 
Special Prosecutors on questions of executive privilege, 
including particularly subpoenas for production of White House 
tapes. Deputy Special Prosecutor Henry S. Ruth and I were the 
two senior members of the large staff that Mr. Cox had 
assembled as part of the Watergate Special Prosecution Force. 

II 

As I understand it, one of the main questions raised 
about the testimony Judge Bork has given both during his 1982 
confirmation hearings for his seat on the Court of Appeals and 
during his current hearings is whether his recollection of his 
conduct immediately after the dismissal of Mr. Cox on Saturday, 



3215 


October 20# 1973# represents "revisionist history" and whether 
he was only willing to cooperate with the Watergate 
investigations after he detected the so-called "fire storm" 
that developed in the days following the dismissal of Mr, Cox. 

I was there# and it is unfair and inaccurate to insinuate that 
Judge Bork has shaded his testimony. 

Ill 

At the outset# I want to state# as I have in print 
before, that I thought at the time and continue to think now 
that Judge Bork made the "wrong" decision when he decided to 
comply with President Nixon*s instruction to dismiss Mr. Cox, 
rather than to follow the path chosen by Attorney General 
Richardson and Deputy Attorney General Ruckelshaus. 
Nevertheless, from the first conversation that I had with Mr. 
Bork on the evening of the Saturday Night Massacre and from 
subsequent conversations# I have been satisfied that he acted 
for what were reasoned and reasonable motives and that his 
conduct was in all respects honorable. 

IV 

After the early evening announcement on Saturday# 
October 20, of the dismissal of Mr. Cox# most of the members of 
the staff of the Watergate Special Prosecutor’s office gathered 
at the headquarters of the prosecution team to consider whether 
the dismissal would undermine or abort the many ongoing 
investigations under our jurisdiction. At 9:50 p.m. that 
night, I telephoned Mr. Bork at his home to discuss that issue, 
and specifically to learn whether he had intended to discharge 
the Assistant Special Prosecutor who had actually been 
conducting the investigations. 

It would be hard to overstate the importance of that 
question. In the five months since his appointment as Special 
Prosecutor, Mr. Cox had assembled a staff of approximately 35 
Assistant Special Prosecutors who had already commenced a 
number of grand jury proceedings into the Watergate break-in 
and cover-up and into a variety of other highly sensitive 
matters assigned to the Watergate Special Prosecution Force. 

Mr. Cox had carefully recruited his staff to assure that they 



3216 


would be completely independent of any governmental or 
political relationship that would call into question their 
objectivity and independence. Each of the staff prosecutors 
was specially appointed for this assignment. If Mr. Bork as 
Acting Attorney General had not only dismissed Mr. Cox, but 
also dissolved the staff and terminated the special 
appointments, there would have been substantial and perhaps 
irreparable obstruction of the ongoing criminal investigations. 

During my conversation with Mr. Bork within a few 
hours of the announcement of Mr. Cox's dismissal, however, he 
assured me that he had not endeavored to do anything beyond 
follow the narrowest interpretation of the President’s 
instruction, which was to dismiss Mr. Cox. Although I 
expressed to him in the strongest possible terms my objection 
to that decision, he provided to me the same explanation that 
he has provided on many occasions since then: that in his 
discussions with Attorney General Richardson about the options, 
he had concluded, and that Mr. Richardson had concurred, that 
the personal pledge of tenure that the Attorney General had 
given when he selected Professor Cox did not apply to other 
officials of the Department of Justice; that in Mr. Bork’s view 
the President had the lawful constitutional power to order the 
dismissal of any employee of the executive branch in a position 
such as Mr. Cox’s; and that, most important, his decision to 
take the course that he initially favored—to resign rather 
than to execute the President’s directive—would have 
established a pattern causing the resignation of all policy 
level officials of the Justice Department, thus leaving 
thousands of ongoing civil and criminal matters without policy 
level direction. 

Mr. Bork assured me that his compliance with the 
instruction to discharge Mr. Cox had no effect on the authority 
or tenure of the several dozen prosecutors who had been 
conducting the investigations under Mr. Cox's jurisdiction. I 
promptly reported that assurance to the staff. 



3217 


v 

From 6 p.m. until 8:15 p.m. on Monday, October 22nd, 
Deputy Special Prosecutor Ruth and I met with Acting Attorney 
General Bork and the head of the Criminal Division, Henry 
Petersen, to discuss the continued pursuit of the 
investigations. Although that meeting was quite 
heated—largely because of exchanges between Mr. Petersen and 
me--roy distinct recollection of the tone of the meeting was 
that Mr. Bork was sincerely dismayed that I might perceive his 
action as an effort to interfere with the administration of 
justice. He repeated to Mr. Ruth and me the same explanation 
that he had given me on Saturday night for his reluctant 
decision to obey the President's direction. He said that he 
had been confident that, at some point after the entire policy 
level of the Department of Justice had been wiped out in a 
pattern of resignations, some senior civil servant next in line 
to become "Acting Attorney General" would have obeyed the 
President's instruction and ordered Cox's dismissal. Since the 
result was, in Mr. Bork’s view, inevitable, since he considered 
the order—however unwise—to be within the President's 
constitutional power, and since he regarded mass resignations 
at the Department of Justice as a greater obstacle to the 
administration of justice, he explained that he had decided to 
implement the directive. 

At that meeting he repeated the assurance that he had 
given within hours of dismissing Mr. Cox that he hoped that the 
staff that Mr. Cox had assembled was to remain on duty. 

Although the Watergate Special Prosecution Force would formally 
become part of the Criminal Division, subject to general 
oversight by Assistant Attorney General Petersen, a career 
Justice Department prosecutor, whose integrity had never been 
at issue, both Acting Attorney General Bork and Mr. Petersen 
repeatedly insisted that they expected a full and thorough 
investigation of all the matters under our jurisdiction. Both 
men made it clear that they would not be parties to any effort 
to impede these investigations or to cover up any criminal 
involvement by any white House officials. 



3218 


One of my most vivid recollections of that evening is 
that it was plain that, because of his peripheral role as 
Solicitor General, Mr. Bork had not been familiar with the 
depth and scope of the sensitive investigations assigned to the 
Watergate Special Prosecutor beyond those that have come to be 
known as the "Watergate" investigations. Some of those 
investigations involved not only allegations against senior 
White House officials, including the President, but also 
allegations about then-present or former officers of the 
Department o£ Justice itself. When I explained that it was the 
existence and delicacy of those investigations that underscored 
the need for a Special Prosecutor, Mr. Bork appeared to 
recognize that the affair had dimensions that he had not 
previously appreciated. 

Despite some suggestions by others to the contrary, 

Mr. Bork reiterated that night his commitment to full and 
vigorous investigations as long as he remained Acting Attorney 
General. I specifically recall the assurances that he and 
Assistant Attorney General Petersen gave that the 
investigations would proceed on an objective, thorough and 
professional basis and would seek whatever evidence was 
relevant in determining guilt or innocence of the persons under 
investigation. 

None of the four men meeting in the Solicitor 
General’s office that evening knew precisely what would happen 
next, and both Mr. Bork and Mr. Petersen urged Henry Ruth and 
me to do whatever we could to keep the staff together and to 
remain at our posts as well. We left for later discussion the 
determination of precisely what investigative methods to use in 
pursuing the investigations. 

Later that night and then again the following morning, 
Tuesday, October 23rd, Henry Ruth and I met with the rest of 
the staff to convey to them the assurances that we had received 
from Acting Attorney General Bork and Mr. Petersen that they 
wanted the investigations to continue vigorously and that they 
would protect the integrity of those investigations. As a 
result of those assurances, Mr. Ruth and I, and the remainder 



3219 


of the staff, resolved that we would continue to conduct the 
kind of independent investigations that Professor Cox had hired 
us to pursue, unless and until either Mr. Bork or Mr. Petersen 
took action inconsistent with those assurances. 

VI 

There was no such contrary action from either man. 
Later that morning, Tuesday, October 23—the first business day 
after the "Saturday Night Massacre" and the first day possible 
for court proceedings—I spoke with Acting Attorney General 
Bork to tell him that the staff would remain on duty. I also 
informed him that it was our intention to take an action that 
would necessarily be regarded as a direct attack on the 
instructions that General Alexander Haig, President Nixon’s 
White House Chief of Staff, had given as part of the "Saturday 
Night Massacre": the instructions to the Federal Bureau of 
Investigation and then subsequently to the United States 
Marshal’s Service to take custody of the investigative files 
that the Watergate Special Prosecution Force had developed. 

The action that we were planning to take, I informed Mr. Bork, 
was to ask Chief Judge John Sirica, in his capacity as the 
judge supervising the federal grand juries, to issue a 
protective order placing all of the investigations files under 
the custody of the lawyers in the Watergate Special Prosecution 
Force as "agents" of the grand jury, and enjoining any other 
officials of the government from interfering with our custody 
and use of those materials. That action was intended to 
override directly any assertion of White House power to assume 
control of our sensitive investigative files. 

Despite the obviously sensitive nature of that plan, 
Acting Attorney General Bork assured me that he concurred with 
it and was prepared to "stipulate" to the entry of the order, 
although he expressed concern that no one should infer from it 
that either he or Mr. Petersen would otherwise be "looting" the 
files. Mr. Bork gave me this assurance before the President's 
lawyer, Charles Alan Wright, later announced that the President 
was going to comply with the subpoena for White House tapes. 

As further evidence of the reliability of the 


88-374 0 - 89-17 



3220 


i 

assurances that both Mr. Bork and Mr. Petersen had given us 
about their support Cor the integrity and independence of 
investigations of high level misconduct, free from White House 
interference, Assistant Attorney General Petersen personally 
joined the petition that I had informed Mr. Bork we would be 
filing to obtain a protective order prohibiting anyone from 
removing any grand jury records from the office of the staff of 
the Watergate Special Prosecution Force. 

In addition, there was a question about who should 
represent the Government in the proceedings that Chief Judge 
Sirica scheduled for the afternoon of Tuesday, October 23, to 
ascertain whether the President would comply with the order of 
the Court of Appeals requiring production of the White House 
tapes. After we gave Mr. Petersen general briefings on the 
scope of the investigations that we were conducting, and 
specifically on the positions that the Watergate Special 
Prosecution staff was planning to take in further court 
proceedings over the subpoenaed tapes. Acting Attorney General 
Bork expressly agreed that the lawyers whom Archibald Cox had 
selected should continue to handle all court proceedings 
relating to matters under our jurisdiction. 

Indeed, to the best of ray recollection, Mr. Bork and 
Mr. Petersen approved every reconmendation that we made between 
the "Saturday Night Massacre" and the appointment of Leon 
Jaworski as the new Special Prosecutor* 

VII 

It is, therefore, unfair and inaccurate to suggest 
that Mr. Bork’s recollection of the events surrounding the 
"Saturday Night Massacre" and his posture in those events has 
been skewed either by the "fire storm" that began building 
during the following week or by the desire to win confirmation 
of his nomination to the Supreme Court. My recollection of the 
events in which I personally participated is substantially the 
same as his. I am very clear on this, because, as I mentioned 
earlier, I have always been of the view that Mr. Bork should 
have made a different judgment when he decided to obey the 
order to discharge Professor Cox, and I was quite alert to any 



3221 


indication that the judgment he did make reflected a desire to 
impede or undermine the integrity and vigor of the 
investigations that Mr, Cox was supervising. 

Moreover, my impressions do not stand alone. In 
October 1975, the Watergate Special Prosecution Force published 
a 277 page official Report attempting "to describe accurately 
and completely the policies and operations of the Watergate 
Special Prosecution Force from May 29, 1973 to the middle of 
September 1975." (p.3> Of direct relevance to the matter 

before the Committee is the conclusion expressed on page 11 of 
that Report . which represents the contemporaneous assessment of 
the events by the prosecutors who were directly affected by 
them: 

"The 'Saturday Night Massacre* did not halt the work 
of WSPF, and the prosecutors resumed their grand jury 
sessions as scheduled the following Tuesday. Bork placed 
Assistant Attorney General Henry Petersen, head of the 


Criminal Division, in charge of the investigations WSPF had 



(Emphasis added.) 


VIII 

Both this Committee and the Senate have before them a 
decision of enormous consequence for the Supreme Court and the 
country as well as for Judge Bork. In my judgment, it would be 
a terrible injustice to history as well as to Judge Bork to 
rely on a skeptical and inaccurate misunderstanding of his 
motives and actions during and after the "Saturday Night 
Massacre," when members of the Committee and of the full Senate 
decide whether to advise and consent to the nomination. 

I would be pleased to appear personally before the 
Committee to answer questions about these events. In any 
event, I respectfully request that this statement be included 
as part of the record of the hearings on the nomination. 

I declare under penalties of perjury that the foreqoing 

and recollection. 

Washington, D. C. 

September 22, 1987 




3222 


Statement of Henry E. Petersen 
for Submission to the 
Senate Committee on the Judiciary 
September 22, 1987 

My name is Henry E. Petersen, I served in the Criminal 
Division of the Department of Justice from 1951 to 1974, and as 
Assistant Attorney General in that Division from 1972 to 1974. 

I was a participant in certain of the events of late 1973 that 
have been discussed in connection with the nomination of Robert 
H. Bork to become Associate Justice of the U.S. Supreme Court. 

I submit this statement to the Senate Judiciary Committee in the 
hope that it will assist the Committee in gaining a fuller 
understanding of those events. 

Upon being apprised of the resignations of Attorney General 
Elliot Richardson and Deputy Attorney General William Ruckelshaus 
and the dismissal of Special Prosecutor Archibald Cox, T returned 
to Washington, D. C. on October 20, 1973, and was present at the 
Department of Justice the following day. At that time, then-Acting 
Attorney General Bork and I discussed our mutual conviction that 
the Watergate Special Prosecution Force's investigations must 
oroceed without interruption or outside interference. As the 
Assistant Attorney General in charge of the Criminal Division, I 
was given oversight responsibility for the Watergate investigations 
by the Acting Attorney General, who was acting pursuant to a 
presidential directive to return responsibility for the investi¬ 
gations to the Department of Justice. He and I well understood 
that our personal and professional reputations depended upon the 
proper conduct of those investigations. In our discussions on 
October 21, we noted the importance of keeping the Watergate 
Special Prosecution Force intact. This would necessarily 
require us to give the attorneys of the Special Prosecution Force 
our full support in their efforts to obtain relevant evidence. 

On the evening of Monday, October 22, Acting Attorney 
General Bork and I met in the Solicitor General's Office with 



3223 


Deputy Special Prosecutor Henry Puth and Special Prosecution 
Force Counsel Philip Lacovara to discuss the status and future of 
the Watergate investigations. The Acting Attornev General and I 
conveyed to Messrs. Ruth and Lacovara our desire that they remain 
in their positions and continue to conduct the investigations as 
they had previously, Mr. Bork and I assured them that they would 
have our full support as the investigations went forward and that 
we would permit no improper interference with those investi¬ 
gations so long as we remained in positions of responsibility. 

As Mr. Ruth, a person with whom I had enjoyed a professional 
relationship of trust and confidence, had been Special Prosecutor 
Cox's Deputy, we looked to him to provide leadership and continuity 
to the Special Prosecution Force. 

On the following day. Acting Attorney General Bork and T met 
with members of the Special Prosecution Force at their offices 
and encouraged them similarly to continue their work on the 
investigations. I later met separately with the leaders of the 
various task forces assembled by Special Prosecutor Cox and 
received general reports on the status of their investigations. 

The task force leaders were asked to continue their work, and 
each agreed to do so. 

The Waterqate investigations proceeded under Mr. Ruth's 
leadership, with the support of Acting Attorney General Bork and 
me, and without interference from the White House, until the new 
Special Prosecutor, Leon Jaworski, assumed office on November 1, 
1973. To my knowledge, no request or proposal by Mr. Ruth or any 
other person on behalf of the Watergate Special Prosecution Force 
was denied by the Acting Attorney General or by me during this 
period. 

Acting Attorney General Bork's intention to see that the 
Watergate Special Prosecution Force's investigations continued 
with full support from the Department of Justice and without any 
impediment or interference was clear from my earliest contacts 
with him following the dismissal of Mr. Cox. To my knowledge, he 



3224 


acted at all tines in a manner consistent with this intention. 

I would be pleased to respond to any written question,** that 
the Committee may wish to submit to me. 

I declare that the foregoing is true and accurate to the 
best of my knowledge, information and belief. 




3225 


AFFIDAVIT OF RALPH K. WINTER 

Ralph K. Winter, first having been duly sworn, deposes 
and says: 

I am over eighteen years of age and believe in the 
obligation of an oath* I presently reside at 84 Maplevale 
Drive, Woodbridge, Connecticut. 

On Friday, October 19, 1973, I traveled with my wife and 
son to a motel in or near HcLean, Virginia. I was scheduled 
to fly to western Virginia the next day to deliver a speech, 
while my wife and son were going to spend the day with Mrs. 
Bork. On the morning of October 20, Mr. Bork told my wife 
that he intended to go to work for a while and to come home 
at lunchtime to watch a football game on television. My wife 
and son then went to the Washington Zoo with Mrs. Bork and 
one or more of the Bork children. When I returned in the 
late afternoon or early evening, I went to the Bork home in 
McLean. Mrs. Bork told me that there was a terrible crisis 
involving Mr. Bork. Messrs. Richardson and Ruckelshaus had 
resigned rather than carry out a presidential order to 
discharge the Watergate special prosecutor, Archibald Cox. 

Mr. Bork had automatically become Acting Attorney General as 
a result of the resignations and had agreed to carry out the 
order. 

Sometime thereafter, Mr. Bork returned home. It was 
clear that he and his wife regarded his carrying out of the 
presidential order as an act that would inevitably have 
serious, if not disastrous, consequences for him. Mr. Bork 
told me that he had complied with the order because he felt, 
after conversations with Messrs. Richardson and Ruckelshaus, 
that if he did not carry out the order to discharge Cox, the 
Department of Justice would be left leaderless. He said that 
he, unlike Messrs. Richardson and Ruckelshaus, was not under a 
pledge to the Senate not to discharge the special prosecutor. 
He said that he did not believe that the President's order 
was unlawful because the discharge of the special prosecutor 
alone was not an obstruction of justice. He said that 
President Nixon had directed him to continue the Watergate 



3226 


investigations and that he, Nixon, wanted a "prosecution, not 
a persecution," or words to that effect* 

Mr. Bork indicated to roe that he intended to continue 
the Watergate investigation. My recollection is that during 
the evening a television commentator raised the question of 
whether the special prosecutor's staff would be dismantled 
and that Mr. Bork had indicated that that was out of the 
question. He said that in light of the staff's expertise in 
the matter, it seemed the only appropriate group to continue 
the investigation. 

On the evening of October 21, 1973, there was a dinner 
party at the Bork house that had been planned some time 
before. Before dinner there was a conversation between Mr. 
Bork, Mr. William J. Bacoody, St., and myself. Mr. Baroody 
asked Mr. Bork what he intended to do with regard to the 
Watergate investigation. Mr. Bork responded that he intended 
to continue the investigation through the Watergate special 
prosecutor's staff. Hr. Baroody indicated that he believed 
pursuit of the Presidential tapes was a partisan fishing 
expedition and said to Mr. Bork, "You don't have to go after 
the tapes," or words to that effect. Mr. Bork replied "I 
have to, if they are relevant to the criminal investigation," 
or words to that effect. Hy recollection is that Mr. Baroody 
then said something to the effect that the tapes might not be 
essential, and Mr. Bork indicated that that was a matter to 
be determined by those carrying out the investigation. 

Dated at New Haven, Connecticut, this 25th day of 
September, 1987. 

RALPH K7*WINTER 




3227 


Senator Hatch. Now, these three documents relate to the Water¬ 
gate issue and I think deserve the Senate’s attention. Now, Mr. La- 
covara and Mr. Peterson were also personal participants in the 
events regarding Judge Bork at the time, and in their statements, I 
think they should be considered part of the total relevant informa¬ 
tion. I think both of you would agree with that. 

Mr. Ruth. I agree, Senator. 

Mr. Frampton. I agree, Senator. 

Senator Hatch. All right. In particular, Mr. Lacovara points out 
that Mr. Bork’s motives were not, and I will underline that, were 
not based on the “firestorm” that developed in the days following 
the dismissal of Mr. Cox. Mr. Lacovara states that he “was there 
and it is unfair and inaccurate to insinuate that Judge Bork has 
shaded his testimony.” In addition, Mr. Lacovara states “I specifi¬ 
cally recall the assurances that he and Assistant Attorney General 
Peterson gave that the investigations would proceed on an objec¬ 
tive, thorough and professional basis and would seek whatever evi¬ 
dence was relevant in determining guilt or innocence of the per¬ 
sons under investigation.” 

Senator Kennedy. Can I ask the Senator for copies of what the 
Senator is reading from? 

Senator Hatch. Sure. 

Senator Kennedy. Or just ask the staff to make copies. 

Senator Hatch. Yes. Just to have staff to make copies. They are 
right here. You have got copies? Okay. 

Now Mr. Lacovara was there at the time, and he stated that 
Judge Bork, quote, “would seek whatever evidence was relevant in 
determining guilt or innocence.” 

Now I also have a New York Times, Monday, October 29, 1973 
article, which made it very clear that Bork and the White House 
had difficulties, that he was arguing with them over the special 
prosecutor. 

And it said, “Mr. Bork”—I am just reading excerpts, and I will 
put this in the record, also, if I can, Mr. Chairman. 

Mr. Bork, on the other hand, had let it be known that he be¬ 
lieved, strongly, that whoever takes a job from which Mr. Cox was 
dismissed a week ago, quote, “ought not to have any strings on him 
from anybody,” unquote, and you can go on and read the rest of it. 
There are other good quotes in there as well. 

Then we have the testimony of Dallin Oaks. 

Mr. Ruth. Senator, by October 29,1 do not debate that- 

Senator Hatch. Okay. That is 1 week later. That is hardly “not 
contemporaneous with. 

Mr. Ruth. Sir, I am not arguing. I am just stating what hap¬ 
pened during those 9 days. 

Senator Hatch. All right. Well, on Monday morning- 

Mr. Ruth. I am not stating a position, I am not arguing, I am 
not- 

Senator Hatch. Well, that is good. 

Mr. Ruth [continuing]. Trying to impugn anyone’s motives. I am 
telling you what happened, and I just do not want history rewrit¬ 
ten merely to have somebody confirmed to the judiciary. 

Senator Hatch. All right. If that is what you are doing, I accept 
that. 



3228 


But on Monday morning, according to Dallin Oaks—and I do not 
know a person alive—but I am sure Senator Metzenbaum did not 
mean to impugn him. I do not think he was here when Professor 
Oaks testified. 

But I do not know a person alive who would impugn his integri¬ 
ty. He said on Monday morning, to the best of his recollection, 
within a few hours after the dismissal, Bork called him and said 
that I’ve got a lot of problems here, and I’ve got to appoint a Spe¬ 
cial Prosecutor, and I want to know who you recommend. I think 
it’s got to be somebody who's a former president of the Bar Associa¬ 
tion, somebody so impeccable that it’d be acceptable. 

And he asked him who he would recommend, and he said there 
are only two that I would really recommend, or basically, that is 
what he said. 

And he said Mr. Justice Powell would be one, and of course the 
other would be Leon Jaworski, who would have the dedication, the 
drive, and the tenacity to do something like this. 

And he said, well, I’ve heard that from a number of sources, or 
words to that effect. Now that is all I am saying, and, he was call¬ 
ing from the Supreme Court rather than from the Justice Depart¬ 
ment because he was concerned about the maelstrom that was 
around him at that time. 

And I imagine that he probably did keep it pretty close to his 
vest at that particular time, but certainly, a strong indication by 
an impeccable person, who is now an apostle in the Church of 
Jesus Christ of Latter Day Saints—one of the top 12 authorities in 
that church—that literally, Bork not only had it on his mind but 
was actively seeking for somebody to appoint a Special Prosecutor. 

Mr. Ruth. Sir, I can tell you, as a matter of personal observation, 
that during those few days. Bob Bork was a very troubled person. 

Senator Hatch. That is what Mr. Oaks said. 

Mr. Ruth. He was being painted as a villain. There were buttons 
that said: “Bork twice if you’re for impeachment.” 

He was painted as interfering with and obstructing justice, and I 
have no doubt that he was calling every friend he could think of, 
trying to figure out what to do. I would not dispute that. 

Senator Hatch. Well, then, you would not deny- 

Mr. Ruth. I also know he does not believe in Special Prosecutors, 
and he does believe, as he testified before Senator Thurmond in 
1973, that there are too many constitutional problems with a Spe¬ 
cial Prosecutor. 

Senator Hatch. That may be personally, but you do not doubt 
Dallin Oaks’ testimony, do you? 

Mr. Ruth. No, sir. Dallin Oaks- 

Senator Hatch. Okay. So he may disbelieve in Special Prosecu¬ 
tors personally, but politically knew he had to have a Special Pros¬ 
ecutor, and actually went out and did that. 

Mr. Ruth. I think eventually- 

Senator Hatch. And fought the White House in the process. 

Mr. Ruth. I agree with your word, that politically, he realized he 
had to have a Special Prosecutor. 

Senator Hatch. I think that is probably so, and there are consti¬ 
tutional questions about whether or not Special Prosecutors, the 
way the law is written, whether it is constitutional. 



3229 


But the fact is he was actively searching for one, and you admit 
you would not deny Dallin Oaks* testimony. 

Mr. Ruth. Senator, I have no doubts about the constitutionality 
of the present Special Prosecutor. 

Senator Hatch. Well, that is your viewpoint. He may have some 
doubts. Maybe others do, including myself, but you are certainly 
entitled to your viewpoint, and I suspect the other people are as 
well. 

Mr. Ruth. Yes, sir. 

Senator Hatch. And it has been a big debated subject for years. 
And you may very well be right. 

Now Mr. Ruth, as you know, some have tried to find something 
sinister in differing recollections of what was said, implicitly or ex¬ 
plicitly. 

Mr. Ruth. I have said nothing about anyone being sinister. 

Senator Leahy. I am sorry. I did not hear the last comment. 

Mr. Ruth. I have said nothing about anyone being sinister. I just 
do not believe people were sinister, except in the White House, sir. 

Senator Hatch. Well, I am happy to near that, and I think you 
may have agreement from me on that. 

Senator Kennedy. Senator, I want to be accommodating just in 
terms of the time on it, but whatever way you want to proceed. We 
all have been somewhat flexible, and we want to provide you with 
the opportunity, if you can do it, and then move on along. 

Senator Hatch. I think maybe this is important. I remember— 
yes, I know you will, and you have always been accommodating. 

Senator Kennedy. Why don’t you take- 

Senator Hatch. Let me just take a few more minutes, and I will 
try and finish, but as you know, this is not easy to go through and 
you cannot do it in 5 minutes. 

But it is important, and I, of course, waited for you for 20 min¬ 
utes this morning as you interrogated a witness about Watergate. 

Mr. Ruth. Senator, remember, we are a gasping cadaver. 

Senator Hatch. You are what? 

Mr. Ruth. We are a gasping cadaver, according to Senator Simp¬ 
son. 

Senator Hatch. That may be. That may be. 

Well, the point is that there are a lot of different recollections 
about that Monday night meeting attended by you, Mr. Bork, Mr. 
Petersen, Mr. Lacovara. Let me just ask a couple of questions to 
see if we cannot show—you know—this canard for what it is. 

First, let me read you what Mr. Petersen has said in a statement 
he has forwarded to this committee. 

Quote. First quote. “The Acting Attorney General and I conveyed 
to Messrs. Ruth and Lacovara our desire that they remain in their 
positions and continue to conduct the investigations as they had 
previously.” 

“Mr. Bork and I assured them that they would have our full sup¬ 
port as the investigations went forward, and that we would permit 
no improper interference with those investigations so long as we 
remained in positions of responsibility.” Unquote. 

You do not have any disagreement with that, do you? 

Mr. Ruth. Whose testimony is that? 

Senator Hatch. This is Petersen. Mr. Petersen. 



3230 


Mr. Ruth. Well, I called Mr. Petersen about 2 weeks ago to 
check my own recollection, because he is an old friend of mine, and 
I said, Henry, I was just looking at Mr. Bork’s 1982 confirmation 
testimony, and I do not recollect being assured of independence and 
of these being a new Special Prosecutor, but I wanted to check it 
against his recollection. 

And I do not want to misquote him, but his recollection was that 
nobody knew what was going to happen. Indeed, on Tuesday or 
Wednesday at the time, he told me the White House still wanted 
me fired. 

And I said, well, sun I going? and he said, I do not know. That is 
the way it was, Senator. We cannot rewrite that history. There is 
nothing sinister about it, but it is all fact. It was there. There was 
tremendous uncertainty and no one knew what was going to 
happen. 

Senator Hatch. I agree. No one knew what the White House was 
doing, but Bork was doing everything to hold the office together, 
and that is the point that I think Bork makes, and that is what 
Oaks makes, that is what Petersen makes. 

Well, let me read you what Mr. Lacovara said in his statement. 

Quote. “Despite some suggestions by others to the contrary, Mr. 
Bork reiterated that night his commitment to full and vigorous in¬ 
vestigations, as long as he remained Acting Attorney General. I 
specifically recall the assurances that he and Assistant Attorney 
General Petersen gave, that the investigations would proceed on an 
objective, thorough and professional basis, and would seek what¬ 
ever evidence was relevant in determining guilt or innocence of the 
persons under investigation.” 

Now none of the four people, including yourself, meeting in the 
Solicitor General’s office that evening, knew precisely what was 
going to happen next, and both Mr. Bork and Mr. Petersen, it 
seemed to me—well, excuse me. Let me just read this. 

“And both Mr. Bork and Mr. Petersen urged Henry Ruth, and 
me, to do whatever we could to keep the staff together and to 
remain at our posts as well.” 

“We left for later discussion the determination of precisely what 
investigative methods to use in pursing the investigations.” Un¬ 
quote. 

Now that was Lacovara. 

Senator Kennedy. Give the witnesses a chance. That is the 
second- 

Senator Hatch. I will. Do you have any- 

Senator Kennedy. Just to make a comment, if they so wish. 

Mr. Ruth. Well, I do. We were certainly urged- 

Senator Hatch. Well, let me finish my statement. I am just read¬ 
ing the quote. 

Senator Kennedy. Well, the time. We have had two rounds for 
the Senator, and I wanted just to go to Senator- 

Senator Hatch. Ted, let’s be fair. You took 20 minutes this 
morning on a little point. These are big points and I cannot get 
through them in- 

Senator Kennedy. Yes, you can. 

Senator Metzenbaum. I am going to have to object myself. When 
Senator Thurmond- 



3231 


Senator Hatch. It is all right for your side to take all you want. 
We cannot take ours? 

Senator Metzenbaum. Just a moment. Just let me be heard. 

When Senator Thurmond had the floor, you took 5 or 10 minutes 
of his time, and nobody objected to it. Then you have had 5 min¬ 
utes, and another 5. 

Senator Kennedy. Senator, we- 

Senator Hatch. There were 30 minutes taken by two of your side 
this morning. Now all I am going to do is finish with this quote- 

Senator Kennedy. Senator Thurmond was enormously accommo¬ 
dating to work out back-to-back panels. 

Senator Hatch. Yes. He was. 

Senator Kennedy. And he did that in order to accommodate Sen¬ 
ator Metzenbaum and myself. We would like to try and be accom¬ 
modating, but I thought that since the Senator had two rounds, 
that we would enforce the time limit strictly for the remaining wit¬ 
nesses, and then Senator Biden has come back- 

Senator Hatch, That will be fme. 

Senator Kennedy [continuing]. And we will let him make the de¬ 
cisions as to what we will do after that. Joe, we are glad to have 
you back. 

Senator Hatch. That will be fine, but I would like it to work 
both ways, not just all the time on that side, and none- 

Senator Kennedy. Now Senator, it has. 

Senator Hatch. No, it has not. 

Senator Kennedy. You have had two rounds. We will let Senator 
Biden- 

Senator Hatch. Well, it has not worked that way. 

Senator Kennedy. I would recognize the Senator from Vermont. 

Senator Leahy. I do not mind so much the Senator from Utah 
going overtime. I would just like to allow the witnesses to answer 
his question, after he had asked it, before I begin my round. Mr. 
Chairman, I did not know whether they had had an opportunity to 
answer the question. 

Senator Hatch. Well, first of all, I had not had the opportunity 
to finish the quote from Philip Lacovara, and as soon as I had fin¬ 
ished, I was going to ask them if they agreed with the quote. I was 
not even permitted to do that. 

Now, look, this is important stuff. 

Senator Leahy. I thought after 10 minutes one could get the 
question out, but- 

Senator Hatch. Well, let’s be fair about it. Let’s let both sides 
have some time. 

Senator Leahy. All right. 

The Chairman. Are you guys all right? Are you all doing okay? 
Good. I am all right. You are all right. I am sure glad I came back. 

Mr. Ruth. I would be happy to ask the question and then answer 
it, Senator, if you want. 

The question seems to be, do I agree with Phil Lacovara, that 
Robert Bork asked the staff to stay together and continue our 
work. Yes. The answer to that is “yes.” 

The question is why, and what would the power be when it came 
time to subpoena the next tape from the President and the Presi- 



3232 


dent said no. We did not know what Mr. Bork would do when the 
President said no. That was the issue, sir. 

Staying together—everybody wanted us to stay together for their 
different motives. The White House wanted us to stay together to 
offset the independent Special Prosecutor bills introduced in the 
Congress, which Mr. Bork thought were unconstitutional. 

Senator Hatch. Can I just make one comment on that, because 
that is what Lacovara said. He said yes, he would keep you togeth¬ 
er. 

But Lacovara said: “I specifically recall the assurances that he 
and Assistant Attorney General Petersen gave, that the investiga¬ 
tions would proceed on an objective, thorough, and professional 
basis, and would seek whatever evidence was relevant in determin¬ 
ing guilt or innocence of the persons under investigation.” 

Do you recall that? I mean, is that fair? 

Mr. Ruth. Yes, sir. Phil Lacovara is a close friend of mine, he is 
one of the best lawyers- 

Senator Hatch. He is a great guy. 

Mr. Ruth [continuing]. I have ever dealt with. However, he and I 
differ on this point. 

Senator Hatch. Okay. 

Mr. Ruth. Mr. Bork had never been in law enforcement. He had 
no idea of the status of the investigations. Any assurance by him, 
again, was irrelevant. That is a fact, Senator. It is not sinister. 

The Chairman. Hit that timer and- 

Senator Leahy. My time now? 

The Chairman. Senator—your time is up? 

Senator Leahy. No. [Laughter.] 

The Chairman. It is okay by me, if you view it that way. 

Senator Leahy. No, I do not. 

The Chairman. Go ahead. The Senator from Vermont. 

Senator Leahy. I thought we were still on Senator Hatch’s third 
round. 

Let me ask this. You said Judge Bork was not someone with a 
law enforcement background. I find your testimony very interest¬ 
ing. 

I spent a third of my adult life in law enforcement as the chief 
law enforcement officer of my home area, and one thing that 
strikes me in all of this is the question of, as this change went on, 
of somebody coming forward and saying, hey, fellows, what have 
you got there? You know, what’s the evidence? Should we be secur¬ 
ing any evidence? Should we be holding on to something? Are 
there subpoenas that should be going out? Should we be grabbing 
hold of any material? And I have not heard anything about that. 

Let me ask you this, Mr. Ruth. Did Judge Bork say to you what 
is the evidence you have here, what kind of a case do you have, 
what should we be holding together? 

Mr. Ruth. No, sir. You mean before the firing? There was no in¬ 
quiry before the firing. We started to brief Mr. Petersen in the 
week following the firing. 

Indeed, we were so apprehensive about what was going to 
happen, that a number of us had rented safe-deposit boxes, and in 
fact, Senator Hatch, Phil Lacovara and I had a joint safe-deposit 



3233 


box at Riggs Bank in which we put grand-jury material, just to 
safeguard it. 

And the following week, we went to court with the name of the 
Watergate Special Prosecution Force, and only Henry Petersen to 
seek a protective order, that no one but members of our staff, and 
Henry Petersen, could take material out of our office. 

That did not include Mr. Bork, and that indicates how we felt 
about Mr. Bork at the time, not knowing his position on the extent 
and breadth of executive power and executive privilege. 

Senator Leahy. Did you find it unusual that there was no in- 

3 uiry made about what kind of evidence you had, or what you were 
oing to protect the evidence? 

Mr. Ruth. Before the firing, as a prosecutor, I was astounded, 
particularly in light of the fact that John Dean had just pleaded 
guilty to conspiracy to obstruct justice in conversations with the 
President, to which he had testified in public in July for 4 days. 

So everybody knew the nature of that evidence, Senator, which 
was being suppressed by the firing. 

Senator Leahy. Mr. Frampton, did you want to add anything to 
that? 

Mr. Frampton. Only this, Senator. That I recall during the 2 
weeks after the firing of Mr. Cox, that our offices, which had origi¬ 
nally been seized by FBI agents, presumably acting under the in¬ 
structions of Judge Bork, and were replaced by U.S. marshals, in¬ 
spected the material that we took out of the office to take to the 
grand jury. 

And so we adopted a practice of not taking anything that we 
would not want the White House to see, because we assumed that 
the marshals reported to the Justice Department, and there was a 
risk that anything they inspected, they might report back to the 
WTiite House and to people who were under investigation. 

Senator Leahy. Were you given, at the time, any instructions of 
what you were supposed to do, other than just remain on the job? 

Mr. Frampton. Not that I can recall. Our objective was simply to 
try to get by, day by day, enough days, that either the President 
would be forced, as he was eventually, to appoint a new Special 
Prosecutor, or the Congress would come to our rescue with Special 
Prosecutor legislation, and we would have someone, even if it were 
not our group, to turn the evidence over to. 

Mr. Ruth. There was a third option, Senator, which we were pre¬ 
pared to do, and that was to go to Judge Sirica, since we were offi¬ 
cers of the grand jury, and become the attorneys for the grand 
jury. 

This investigation was not going to stop. 

Senator Leahy. All of these, these three options that you talk 
about, in my mind as a former prosecutor, I find remarkable, be¬ 
cause they sort of have you going off, trying to gerrymander some¬ 
thing, without having the person—who should be the central 
person giving direction—doing so. 

Or am I missing something? 

Mr. Ruth. Sir, the context—if we remind ourselves—a Mideast 
war had just begun in the beginning of October, and during that 
weekend, and before, Charles Allen Wright, the President’s counsel 
had told Archie Cox, “We’ll do what is best for the interests of the 



3234 


country,” and General Haig had told Bill Ruckelshaus your com¬ 
mander-in-chief has ordered you. 

There was a whole national security overtone, that it was neces¬ 
sary to the nation to get rid of the Watergate Special Prosecution 
Force. 

We were, quite frankly, frightened what was going to happen, 
and then when the FBI occupied our offices, it is very vivid and 
hard to describe. 

Senator Leahy. And the FBI was under the final chain of com¬ 
mand to the new Acting Attorney General? 

Mr. Ruth. Nothing goes in, nothing goes out, the FBI kept 
saying. 

Senator Leahy. Thank you. 

The Chairman. When I last was here—I am not sure who was 
next. 

Senator Simpson. 

Senator Simpson. Thank you, Senator. We are talking about two 
rounds, three rounds. I haven’t heard that since I was in the Blue 
Ribbon Bar in Meeteetse. [Laughter.] 

Strange things done in the midnight sun. Robert Service’s mar¬ 
velous story about the cremation of Sam McGee. And you know, 
really, it is strange. Because here we are talking about a situation 
that happened in this United States 14 years ago, and this man has 
been before us twice, once as a Democratically controlled Senate, 
once as a Republican controlled Senate, and my question is where 
were you then? 

Mr. Ruth. When, Senator? 

Senator Simpson. When we confirmed this man as Solicitor Gen¬ 
eral of the United States of America before a Democratically con¬ 
trolled Senate and when we confirmed him to the U.S. district 
court of appeals, and he had a hearing before this body, and one of 
the issues was Watergate, and where were you then? 

Mr. Frampton. Senator, I can answer that question for myself. 

Senator Simpson. Yes. It would be helpful. 

Mr. Frampton. I was not asked to testify at Judge Bork’s confir¬ 
mation hearings in 1982, and I didn’t volunteer. I didn’t volunteer 
to testify here today, either. I was asked to testify, and I must say 
that until 5 or 6 weeks ago I had never seen or read Judge Bork’s 
testimony given in the 1982 hearings. And when I read that testi¬ 
mony, I concluded based upon the facts known to me personally, 
which are very vivid in my mind, that that testimony is substan¬ 
tially inaccurate. 

Senator Simpson. Who asked you to testify? 

Mr. Frampton. I was notified on Monday morning that the com¬ 
mittee had put me on a witness list. That is a week ago, when I got 
back from Montana 

Senator Simpson. Who called you? 

Mr. Frampton. I don’t know. Senator. The scheduling person for 
the committee majority, I assume, called me and left a message 
that I was to testify Thursday with Mr. Ruth. 

Senator Simpson. Were you called, too, Mr. Ruth? 

Mr. Ruth. No, sir, not in 1982. All in all, I would rather be in 
Philadelphia, and that is where I was in 1982 and I am not sure I 
was even aware of Judge Bork’s hearings. 



3235 


Senator Simpson. Well, you are aware of Watergate because you 
both- 

Mr. Ruth. Up in Philadelphia, we have to work for a living, Sen¬ 
ator. We can’t keep coming down here. 

Senator Simpson. I know. But you both have talked about it, you 
have written about it, and you have said a lot about it. It meant a 
great deal to you in your lives. 

Mr. Ruth. I have written nothing about it and not talked about 
it. I never wrote a book about Watergate. We put out a report at 
the end of the Watergate Special Prosecution Force, which contains 
most of the facts that I testified to today. 

Senator Simpson. Well, that is pretty .vital stuff anyway in your 
lives or you wouldn’t be here and speaking about it with the inten¬ 
sity that I think I hear displayed. 

Mr. Ruth. It was an intense time, Senator. 

Senator Simpson. But, anyway, Mr. Frampton wrote about it in a 
book called Stonewall, and in chapter 8, called “Archie’s Orphans 
Meets the Silver Fox, Jaworski Arrives:” 

“To say that we had very little confidence in our new boss, Leon 
Jaworski, on the day he was sworn in would be putting it mildly. 
To us Jaworski represented no less than the man President Nixon 
had procured to perpetrate the biggest fix of all time.” 

Well, I guess you were wrong on Jaworski, apparently. What is 
your view on that? I think you were wrong on Jaworski. This is 
what you said about him. 

Mr. Frampton. That was the point of view of most of the people 
in the office, including myself, on the day Jaworski arrived. That is 
correct, Senator. He certainly earned our respect and our admira¬ 
tion for his integrity and his aggressiveness. 

Mr. Ruth. That was not my view at the time, Senator. I had had 
the opportunity to work with Mr. Jaworski on President Johnson’s 
Crime Commission. 

Senator Simpson. Yes, I see. 

Mr. Ruth. Mr. Jaworski was tough as nails. He wasn’t going to 
accept the job unless he knew he had independence, and when he 
accepted it I knew we were home free. 

Senator Simpson. But at that time, it seems to me, if you can 
refer to Jaworski as a “fixture,” there is no limit to what you can 
refer to Bork as during those times. That is what I am saying. 

And Bork did testify, Elliot Richardson did testify, I don’t believe 
you were present at the meeting of Judge Bork, either one of you, 
or the leaders of the team. I don’t remember that you were there. 
No one has ever testified in these proceedings that either one of 
you were involved in the decision on October 20 about whether to 
carry out the President’s order to dismiss Mr. Cox, so you are not 
in any possible position, either one of you, as lawyers or laymen or 
just witnesses, to second guess the judgment made by Judge Bork 
and Elliot Richardson that it was the proper course of conduct for 
Judge Bork to carry out that order. 

How can either one of you be any kind of credible witness when 
you weren’t there and you didn’t participate in it one whit? 

Mr. Ruth. Because Mr. Bork has testified that he made the deci¬ 
sion in 5 minutes without asking about the state of the evidence at 
a time when we were requesting tapes with evidence of Presiden- 



3236 


tial crime on it. I think I am entitled to make that judgment, as 
the number two man in the office at that time, better than anyone 
else. 

Senator Simpson. Well, that is interesting. You talked about the 
report. 

Mr. Ruth. Yes, sir. 

Senator Simpson. You did talk about that. 

Mr. Ruth. Yes, sir. 

Senator Simpson. And in that report—and thank you, Mr. Chair¬ 
man, for this extra moment here on my only round, because I am 
leaving here in a minute. 

So here is the conclusion on page 11 of the report, the contempo¬ 
raneous assessment of the events by the prosecutors: 

“The Saturday Night Massacre did not halt the work of WSPF 
and the prosecutors resumed their grand jury sessions as scheduled 
the following Tuesday. Bork placed Assistant Attorney General 
Henry Peterson, head of the Criminal Division, in charge of the in¬ 
vestigations WSPF had been conducting. Both men assured the 
staff that its work would continue with the cooperation of the Jus¬ 
tice Department and without interference from the White House.” 

That is the Watergate report that you were involved in. 

Mr. Ruth. Read the last sentence of that paragraph, Senator. 

Senator Simpson. I just did. I don’t want to waste too much more 
of my time. 

Mr. Ruth. No, the last sentence. 

Senator Simpson. The last sentence- 

Mr. Ruth. I have it here if you want me to read it to you. 

Senator Simpson. Well, whip her out, put her in the record. Ev¬ 
erybody else is using pieces that are most acceptable to them. No 
reason why you can’t. 

But that is the report, and put that in the record, too. But you 
weren’t there, you didn’t participate, you weren’t here when this 
critical thing came up before, and now you are here today, and 
were asked to do it. 

Mr. Ruth. I don’t understand anything you are saying, Senator. 

Senator Simpson. I know you may not understand. I know it is 
puzzling for you. I know it must be absolutely baffling for you. 

Mr. Ruth. I understand your dismay over these hearings, but 
what you said is something—let me read the last sentence. 

Senator Simpson. What is it? 

Mr. Ruth. Could I read the last sentence of that paragraph? 

Senator Simpson. Well, you betcha. 

Mr. Ruth. “Despite their anger over Cox’s dismissal and their 
doubts about the future of their office, the staff members in a 
series of meetings decided to continue their work for the time 
being.” 

That is the way it was, Senator. 

Senator Simpson. Well, that is not too dramatic. 

Mr. Ruth. I am not trying to be dramatic. 

Senator Simpson. Well, what was dramatic is that Watergate got 
all solved. That is what was dramatic. And to thrash around in it 
like we have been doing when something happened 14 years ago is 
the most bizarre exercise in reconstruction of something that was 



3237 


resolved in the American, gut and head, about 14 years ago, and 
that is what I am saying. 

Mr. Ruth. Senator, I was invited to be here. If you would like me 
to go home, I will go home. 

The Chairman. Senator Grassley. 

Senator Grassley. Mr. Chairman, I would like to reserve my 
time for now. Thank you. 

The Chairman. Good. All right. 

Senator Humphrey. 

Senator Humphrey. Mr. Chairman, a lot of people have been re¬ 
ferring to various documents, I would refer the curious to the tran¬ 
script of the committee hearing on January 27, 1982, at which 
Robert Bork and was queried by members of the committee. 

As Senator Simpson has pointed out, the subject of Watergate 
and the firing of Archibald Cox came up during that confirmation 
hearing. It is interesting if you look at that record that the three 
principal inquisitors at this hearing, the Senators from Massachu¬ 
setts, Ohio, and Vermont, did not choose in 1982 despite their now 
apparent concern over Robert Bork’s standards of ethics and the 
soundness of his judgment, did not see fit in 1982 to utter one 
word, either in the assertive or in the interrogative, in connection 
with the subject of Watergate or the firing of Cox. 

That is certainly peculiar. Such an intense interest today, but no 
interest whatever—indeed, the Senator from Ohio chose to use his 
time to ask the nominee about his views on antitrust legislation, a 
subject which is dear to the heart of the Senator from Ohio. 

But it certainly is curious and revealing—“revealing,” that is the 
word. It certainly is revealing that in 1982 these same pursuers— 
today’s pursuers of Robert Bork chose not to ask him even one 
word about the Cox affair, chose not to utter one word in their 
statements about the Cox affair. 

Now, perhaps, the Senators feel that there is a different standard 
of ethics which applies to nominees to the second highest courts, 
the circuit courts, as distinct from the Supreme Court. I would not 
want to defend that view. That is not my view and it is not one I 
would want to defend. If there is sufficient ethical conduct or suffi¬ 
cient question about the nominee’s ethical conduct to warrant 
denial to one level of the federal judiciary, I would think that same 
standard would apply to all three. In other words, if someone isn’t 
good enough for the Supreme Court in terms of their ethical con¬ 
duct, they are not good enough even for a district court nomina¬ 
tion, much less nomination to the second most important court, the 
D.C. circuit. 

So I don’t think it is plausible or credible for Senators to argue 
that there are varying levels of standards we apply to the ethical 
conduct depending upon which level of the federal judiciary we are 
talking about. 

So we come back to the question of why were these questions not 
asked in 1982? Why do today’s pursuers not ask—did they not ask 
Robert Bork even one question on this subject in 1982? And I think 
the conclusion you have to draw is self-evident—politics. 

And I find it distasteful in the extreme that critics and oppo¬ 
nents would reach back 14 years to the slime of Watergate and toss 
a handful of that smelly stuff at this nominee when, in fact, they 



3238 


didn’t even—at least the Senators I mentioned, didn’t even consid¬ 
er the matter important enough in 1982 to raise one question on 
this subject. 

Mr. Chairman, I will close. I don’t have any questions. 

Mr. Ruth. Could I have a comment, Senator? 

Senator Humphrey. Yes, after I finish, if you don’t mind. I have 
no questions for the witnesses. 

I will close this way, and do so simply by quoting Dean Guido 
Calabrese, of the Yale Law College—Yale Law School, from an arti¬ 
cle he published in the National Law Journal in July of this year. 

“I didn’t think so at the time’’—speaking of Robert Bork. “I 
didn’t think so at the time but he did a principled thing.” And then 
in another place, speaking of Watergate and the firing of Cox—this 
is the punch line, I should think: “For the Senate to dwell on it is a 
red herring and completely wrong.” Published in July of this year, 
and I agree with that. It is a red herring and it is pretty smelly 
slime to be throwing against an honorable man. 

I yield back whatever time I have, if any. 

The Chairman. Thank you. 

Would you like to make a comment, Mr. Ruth? 

Mr. Ruth. Well, I hope our stating the facts isn’t regarded as 
smelly slime. But I think there are issues, and I don’t regard it as a 
matter of ethics, Senator Humphrey. I suppose, 14 years ago or not, 
certainly two things that are important as to the Saturday night 
massacre and Judge Bork are his views of executive power and his 
views of executive privilege. 

On a circuit court of appeals, he is not the final arbiter. On the 
U.S. Supreme Court he is the final arbiter on the extent of execu¬ 
tive power and executive privilege, so I would regard it as a legiti¬ 
mate inquiry to know Judge Bork’s views on those issues, and cer¬ 
tainly without the emotional overtones that, unfortunately, these 
hearings have become. 

The Chairman. Senator Grassley, do you wish to take your time 
now? 

Senator Grassley. No thank you, Mr. Chairman. 

The Chairman. I will take no time. Would you like to take some 
time? 

Senator Leahy. A couple of minutes, if I could, Mr. Chairman. 

This is probably only the first time I have done this in the hear¬ 
ing. I would note, only for the record, that it is passing strange 
that nobody has objected to the testimony of Watergate figures 
when they have been here in support of Judge Bork, and we only 
hear the objections to Watergate being mentioned, or aspects of it, 
when those testifying are opposed to Judge Bork. 

But there is a big difference between thrashing around in Water¬ 
gate, as has been suggested here, and just simply trying to make 
sure that the record is factually straight. I just want to repeat a 
couple of things. 

Mr. Frampton, Mr. Ruth, you did not ask to testify here, did you, 
either one of you? You were invited? 

Mr. Ruth. No, sir. 

Mr. Frampton. That is correct. Yes. 

Mr. Ruth. We were invited. 



3239 


Senator Leahy. And I think Mr. Ruth said that, all things on 
balance, he would rather be in Philadelphia. 

Mr. Ruth. Or in your State, Senator, where my daughter lives. 

Senator Leahy. Actually, at this time of the year- 

Mr. Frampton. Philadelphia. 

Senator Leahy [continuing]. Without being parochial, I think 
Vermont is a lot prettier. The foliage is out. 

But I still go back to the first question I asked. Do you not, as 
experienced prosecutors, find it strange that you were not asked as 
to the state of your evidence, what kind of evidence you had, what 
direction you were going, or even given directions at the time we 
have discussed here? Mr. Ruth? 

Mr. Ruth. Yes, sir. I was astounded. 

Senator Leahy. Mr. Frampton. 

Mr. Frampton. Same answer. Senator. 

Senator Leahy. Thank you very much. Thank you, Mr. Chair¬ 
man. 

The Chairman. Gentlemen, I truly do appreciate you taking the 
time. It is not a pleasant task, but thank you for coming. 

Mr. Ruth. Thank you. 

Mr. Frampton. Thank you, Senator. 

The Chairman. Now, our next panel is a panel of distinguished 
law deans, and I would like to ask them to come forward: Terrance 
Sandalow, dean of the University of Michigan Law School; Steven 
Frankino, dean of the Catholic University Law School; Maurice 
Holland, dean of the University of Oregon Law School; Ronald 
Davenport, former dean of Duquesne Law School; Eugene Rostow, 
Professor Emeritus and former dean of the Yale Law School, and 
one of the most knowledgeable men in the area of arms control, 
among many other hats he has worn. Not to suggest the others 
haven’t worn hats, but I know that I know of Dean Rostow’s prow¬ 
ess; and Thomas Morgan, dean of the Emory University Law 
School; and Gerhard Casper, former dean of the University of Chi¬ 
cago Law School. 

This is indeed a prestigious panel. I welcome you all here. And, 
gentlemen, unless you have agreed on an order—do you have a 
preference? 

Mr. Casper. We have, Mr. Chairman. 

The Chairman. You have. Well, I will let you- 

Mr. Casper. We have chosen a neutral principle, the alphabet. 

The Chairman. True to the neutral principle of the alphabet. 
Well, let us swear you all in first because the photographers can’t 
miss this opportunity with this many people standing in a row with 
their right hand raised. 

Do you swear the testimony you are about to give is the truth, 
the whole truth, and nothing but the truth, so help you God? 

[A chorus of “I do.”] 

The Chairman. Gentlemen, it is all yours, as long as each of you 
stay within 5 minutes. Proceed in any way that you would like. 



3240 


TESTIMONY OF A PANEL CONSISTING OF TERRANCE SAND ALOW, 
STEVEN FRANKINO, MAURICE HOLLAND, RONALD DAVEN¬ 
PORT, EUGENE ROSTOW, THOMAS MORGAN, AND GERHARD 
CASPER 

Mr. Casper. Mr. Chairman, I appreciate the opportunity to 
appear before this committee. I have jointly with Robert Mund- 
heim written a letter to the committee, dated August 25. I ask that 
it be included in the record. 

The Chairman. Without objection, it will be. 

Mr. Casper. Thank you. 

[The letter follows:] 



3241 


Gerhe.r & Casper 

60th Street 
Chicago, IL 60637 


Robert H. Kunfi'neira 
3400 Chestnut Street 
Philadelphia, PA 19104-6204 


August 25, 1987 


Honorable Joseph S. Biden 
Chairman, Senate Judiciary Committee 
United States Senate 
Washington, D.C. 20510 

Dear Mr. Chairman: 

We write because «c are deeply concerned about the 
partisan political character of the debate surrounding the 
President's nomination of Judge Robert H. Bork as an 
Associate Justice of the United States Supreme Court. The 
Supreme Court suffers if Presidents and Senators view it 
as an agent for implementing particular political programs. 

For this reason, the criteria for evaluating a 
nominee's qualifications have normally been phrased not in 
terms of political outlook, but in terms of merit, 
judgment, lack of partisanship, steadiness, uprightness, 
and impartiality. Members of this Committee have 
articulated similar criteria. You, for example, have 
emphasized intellectual capability, demonstrated 
credentials in legal practice, the capacity objectively 
to review questions of law and fact. Senator Metzenbaum 
has talked about integrity, temperament, and ability. Ke 
agree with these standards. Failure to meet them caused 
us recently to write the Senate Judiciary Conmittee to 
oppose the confirmation of Daniel fianion as a Judge of the 
Seventh Circuit Court of Appeals. Application of these 
standards leads us to support the nomination of Judge Bork. 

We believe that Judge Bork's experience and his 
performance as a practicing lawyer, as a law professor at 
one of the country's leading law schools, as Solicitor 
General of the United States, and as a Judge of the United 
States Court of Appeals for the District of Columbia 
Circuit, all testify strongly to his credentials and 
ability. For over thirty years Judge Bork has thought 
deeply about many of the issues which will confront the 
Supreme Court, and he would bring to the Court's 
deliberations a rich and diverse experience. 

Bis independence and lack of partisanship are attested 
to by his firm commitment, during the Watergate crisis, to 
the continuing investigation into wrong-doing by the Hixon 
Administration, including wrong-doing by President Nixon 
himself. Many credit Judge Bork with saving the 
Department of Justice from complete demoralization after 
the resignation of the Attorney General and the firing of 
the Deputy Attorney General. Judge Bork's appointment of 
a new Special Prosecutor and the support of his work 
facilitated the relatively rapid restoration of the 
Department's professionalism under President Ford's 
Attorney General, Eduard Levi. Throughout this period of 
restoration. Judge Bork continued to serve, with dis¬ 
tinction, as Solicitor General under Attorney General Levi. 

Although we think there is no question about Judge 
Bork's outstanding personal qualities, it is also 
appropriate that the Committee be satisfied that Judge 
Bork's conception of the role of the judiciary is within 



3242 


acceptable boundaries. However# we do not believe that 
the Committee should set as a test adherence to any 
particular view of the judicial role. 

In Judge Berk's case, there is a record of judicial 
performance. To the extent that we are familiar with his 
judicial record# we believe it to be a record of 
reasonable and certainly defensible positions. His 
capacity to review the lav/ of the land objectively is 
confirmed by the fact that decisions of the United States 
Court of Appeals for the District of Columbia for which he 
voted have never been reversed by the Supreme Court. 

Judge Berk's opinions have beer, in the mainstream of 
American law and he has rarely felt it necessary to 
dissent from any opinion of the Court. Of ccur&e, we have 
our disagreements witn Judge Bork, but his fajrmindednocs 
is not in question. 

Throughout his career. Judge Bork has taken strong 
positions. The Committee must not fail to distinguish 
between the responsibility of the profession to criticize 
the work of the Supreme Court and the responsibility of an 
Associate Justice to carry it forward. As an academic. 
Judge Bork lived in an environment which encouraged the 
forceful mapping out of positions as a technique for 
developing the intense debates from which solutions to 
difficult problems emerge. In accord with this style, he 
has also modified views he has previously expressed in 
dramatic terms. For example, his encounter with economic 
theories about free markets led him, 23 years ago, to 
oppose the then pending Civil Rights Act of 1964 as 
reflecting the wrong choice between competing claims of 
liberty and equality. We think he was wrong in 1963 and 
Judge Bork has long ago acknowledged that he was wrong. 

In 1973 (confirmation as Solicitor General) and in 
19R2 (confirmation as Circuit Judge of the United States 
Court of Appeals for the District of Columbia Circuit) 
Judge Bork testified before this Committee. His testimony 
on these occasions amply demonstrates that Judge Bork 
fully understood that each of the positions for which he 
was nominated required somewhat different approaches to 
the important issues with which he would have to deal. In 
considering his ability to handle the important responsi¬ 
bilities of an Associate Justice of the Supreme Court, we 
take particular comfort from the fact that, as Solicitor 
General and as a Circuit Judge, Judge Bork has served with 
acknowledged competence and v?ith unquestioned fidelity to 
the demands cf the position. 

We are also petsu3dcd that Judge Berk's judicial 
philosophy is well within respected and widely accepted 
concepts of American constitutionalism. He stresses that 
our system of government, under the Constitution, is based 
on the consent of the governed and allows a majority to 
govern important areas of life as long as they abide by 
tne limitations the Constitution imposes. He agrees with 
Justice Story that, in interpreting these limitations the 
first and fundamental rule is "to construe them according 
to the sense of the terms and the intentions of the 
parties." In Judge Bork's words, the judge's job is to 
understand the principle that the Framers were trying to 
protect and apply that principle in the current 
circumstances, circumstances which the Framers may not 
have foreseen. 

The Framers were for majority rule, inalienable 
rights, stability and change, all at the same time. They 
attempted to reconcile these disparate aims by providing 
for a written Constitution sharply differentiated from 
ordinary legislation, with a Bill of Rights and with 




3243 


provisions for amendment of the Constitution by super 
majorities. This course had important practical 
implications: it provided for constitutional change by 
means of amendments and it advised the majority as veil as 
governmental actors, courts included, that they had no 
power to regulate at will the structure of government or 
basic rights of individuals. As Justice Harlan v/rote in 
1963, the Supreme Court “no less than all other branches 
of government, is bound by the Constitution. The 
Constitution does not confer blanket authority to step 
inro every situation where the political branches may have 
fallen short." 

The issue is the degree of fidelity owed to the fair 
meaning of the Constitution and the intentions of the 
Framers. The issue is furthermore what significance 
should be attached to changes in circumstances and the 
evolution of constitutional doctrine. These are subtle 
and complex matters which cannot be disposed of by simply 
stressing the high level of generality to which 
constitutional terms such as "due process", or "equal 
protection" can be elevated. For example, the Fifteenth 
Amendment was required to protect the right to vote 
against discrimination on account of race and the 
Nineteenth Amendment was required to give the right to 
vote to women. Those fundamental rights were thought not 
to have been guaranteed undct the Fourteenth Amendment. 

On the other hand, the Supreme Court has taken the view 
that it has greater latitude in questioning whether a 
state's regulation of social relations under the 
conditions in which we live may amount to a denial of 
constitutionally protected rights in light of the goals of 
the Fourteenth Amendment. Judge Bork has indicated that, 
as a Judge, his willingness to intervene in such cases is 
limited. Although we might wish that he were somewhat 
more willing to see judges act, we respect his sense that 
facile judicial manipulation of the Constitution endangers 
the very legitimacy that has been a triumphant accomplish¬ 
ment of American constitutionalism for the last 200 
years. Judge Bork seeks to remind us that a judge is 
charged with interpretation of the Constitution, but has 
no mandate to amend it. 

Judge Bork's belief that judges may not amend the 
Constitution does not necessarily mean that he would vote 
to overturn precedent with which he disagrees. Judge Bork 
is fully aware of the interest in legal certainty and 
stability. He testified before this committee in 1982 
that the deference which is due the legislature is also 
due to "the value of precedence, and of certainty, and of 
continuity." Indeed, when asked about stare de cisis at 
those hearings, he was cautious about the wisdom of 
overturning a mistaken constitutional ruling. He said 
that if a court was convinced it had made a terrible 
mistake, it should ultimate ly correct it. 



3244 


Although Judge Bork's judicial philosophy leads him to 
be reticent about court intervention to remedy legislative 
malfunctions, his philosophy is well within the tradition 
of American constitutionalism. Indeed, his emphasis that 
constitutional law is addressed "to the common sense of 
the people" focuses on an essential condition for pre~ 
serving the values we cherish in our society. 



cc: Members of the Senate Judiciary Committee 



3245 


Mr. Casper. Today, I represent only myself. 

With respect to Judge Bork, I have during my professional life as 
a student of the Constitution sometimes agreed with Robert Bork 
and sometimes disagreed with him. However, I had the opportunity 
to get to know Judge Bork well during the 9 years I served as dean 
of the University of Chicago Law School. I have also taught along¬ 
side Judge Bork at the American Law and Legal Institution session 
of the Salzburg Seminar in American Studies in 1983. These en¬ 
counters have left me greatly impressed with Judge Bork’s ability, 
intellectual honesty and integrity. 

The Bork I know is not the cartoon character which has been 
drawn by some of his opponents. One almost gets the impression 
that Judge Bork has been made the scapegoat—I use the word in 
the Biblical sense—for the sins this country, the Congress, Presi¬ 
dents, State legislatures, and judges have committed over 200 
years. 

As you all know, Robert Bork has been one of the most outspo¬ 
ken members of a profession which is not known for its reticence. 
If you have not been impressed, I certainly have, by his willingness 
forcefully to map out positions for others to criticize. What is more 
important, however, is Judge Bork’s past and continuing readiness 
to consider the other side and to yield when the force of arguments 
and facts requires it. 

His openmindedness has been most reflected in his distinguished 
service in the various positions he has held in his professional life, 
especially in his public service as Solicitor General and as a judge. 

Before the hearings began, Judge Bork was criticized for not 
having an open mind. Then accusations emerged during the hear¬ 
ings that Judge Bork is too willing to adjust his views. The catch¬ 
word has been “confirmation conversion.” I view these accusations 
as most unfair and unjustified. 

Under the committee’s intense questioning, Judge Bork has had 
to think in very concrete and specific ways about the responsibil¬ 
ities of a Supreme Court Justice, as distinguished from those he 
has previously discharged. In a most forthcoming manner he has 
made it clear that he fully appreciates the awesome responsibilities 
of the Supreme Court for the continuity of American law and the 
contribution that briefs, argument, and collegial discussion make to 
the proper discharge of those responsibilities. 

I turn now to what I consider the crucial issue of these hearings. 
The majority leader. Senator Byrd, in his opening statement to this 
committee, has most ably articulated the question of overriding im¬ 
portance before the Senate. I quote: “As we celebrate the bicenten¬ 
nial of the Constitution, it is entirely fitting that we discuss the al¬ 
legiance to and regard for the Constitution of a person to whom 
we’re contemplating entrusting major responsibility for its inter¬ 
pretation and application.” 

Somewhat surprisingly, Judge Bork seems to be taken to task by 
members of this very legislative body for reminding us that our 
system of government, under the Constitution, allows majorities to 
govern important areas of life as long as they abide by the limita¬ 
tions the Constitution imposes on them. As concerns the interpre¬ 
tation of that Constitution, the very point of having a written con- 



3246 


stitution is the faithful application and interpretation of that in¬ 
strument. 

To be sure, constitutional law, as all law, evolves and develops 
over time. Nevertheless, to live under the Constitution does not 
mean that anything goes as long as it is approved by five out of 
nine nonelected guardians assembled as the Supreme Court of the 
United States. We must keep in mind that judges who are free to 
operate as a continuing constitutional convention may, as they 
have done in the past, adopt doctrines that may diminish our liber¬ 
ties and override compassionate interventions by government. 

It is my view that Judge Bork has a more profound understand¬ 
ing of the essential nature of American constitutionalism than has 
been reflected by many of his critics. Contrary to the impression 
created by these hearings—which have already done a great 
amount of harm—this country is held together by the rule of law, 
not by the rule of judges. 

Mr. Richardson referred, this morning, to Judge Learned Hand 
and I may quote one sentence from the passage he quoted once 
again because it is very important. Judge Learned Hand once said: 
“[I]n a society which evades its responsibility by thrusting upon the 
courts the nurture of the spirit of [the moderation], that spirit in 
the end will perish.” 

It would be ironic if, in this bicentennial year, the Senate were to 
oppose Judge Bork because he believes, correctly, that judges, like 
all other government actors, are bound by the Constitution and 
should make its m eaning the reference point of all interpretations. 
It would be ironic if in this bicentennial year, the Senate were to 
seek to legitimate a change in our form of government from one 
based on the rule of law and the Constitution to one based on the 
rule of judges who have cut their moorings to the basic charter— 
and who have been chosen by a highly politicized process that ob¬ 
scures the crucial and delicate issues involved. 

I thank the members of the committee who are present for lis¬ 
tening to me and may I add one word. I address this especially to 
those members of the committee who have previously announced 
that they have made up their mind. I very much hope that sober, 
second thought will prevail. Thank you very much. 

[The statement of Dean Gerhard Casper follows:] 



3247 


Remarks by Gerhard Casper/ 

William B. Graham Professor of Law, 

The University of Chicago 

at Confirmation Hearings for Robert H. Bork 

September 29, 1987 


Hr. Chairman, Hembers of the Committee: 

I appreciate the opportunity to appear before this 
committee. I have, jointly with Robert Hundheim, written a 
letter to the committee, dated August 25. I ask that it be 
included in the record. Today I represent only myself. 

With respect to Judge Bork, I have, during my professional 
life as a student of the Constitution, sometimes agreed with 
Robert Bork and sometimes disagreed with him. However, I have 
had the opportunity to get to know Judge Bork well during the 
nine years I served as Dean of the University of Chicago Law 
School. I have also taught alongside Judge Bork at the American 
Law and Legal Institutions session of the Salzburg Seminar in 
American Studies in 1983. These encounters have left me greatly 
impressed with Judge Bork's ability, intellectual honesty, and 
integrity. The Bork I know is ’not the cartoon character which 
has been drawn by some of his opponents. One almost gets the 
impression that Judge Bork has been made the scapegoat — I use 
the word in the Biblical sense —- for the sins this country, the 
Congress, Presidents, state legislatures, and judges have 
committed over two hundred years. 

As you all know, Robert Bork has been one of the most 
outspoken members of a profession which is not known for its 
reticence. If you have not been impressed, I certainly have, by 
his willingness forcefully to map out positions for others to 
criticize. What is more important, however, is Judge Bork's past 
and continuing readiness to consider the other side and to yield 
when the force of arguments and facts requires it. His 
openmindedness has been most reflected in his distinguished 
service in the various positions he has held in his professional 
life, especially in his public service as Solicitor General and 
as a judge. 



3248 


Before the hearings began. Judge Bork was criticized for not 
having an open mind. Then accusations emerged during the 
hearings that Judge Bork is too willing to adjust his views — 
the catchword has been "confirmation conversion.” I view these 
accusations as most unfair and unjustified. 

Under the committee*s intense questioning. Judge Bork has 
had to think in very concrete and specific ways about the 
responsibilities of a Supreme Court Justice, as distinguished 
from those he has previously discharged. In a most forthcoming 
manner he has made it clear that he fully appreciates the awesome 
responsibilities of the Supreme Court for the continuity of 
American law and the contribution that briefs, argument, and 
collegial discussion make to the proper discharge of those 
responsibilities. 

I turn now to what I consider the crucial issue of these 
hearings. The majority leader. Senator Byrd, in his opening 
statement to this committee, has most ably articulated the 
question of overriding importance before this committee and the 
Senate. I quote: "As we celebrate the bicentennial of the 
Constitution, it is entirely fitting that we discuss the 
allegiance to and regard for the Constitution of a person to whom 
we're contemplating entrusting major responsibility for its 
interpretation and application." 

Somewhat surprisingly. Judge Bork seems to be taken to task 
by members of this very legislative body for reminding us that 
our system of government, under the Constitution, allows 
majorities to govern important areas of life as long as they 
abide by the limitations the Constitution imposes on them. As 

V 

concerns the interpretation of that Constitution, the very point 

~. r r U •. w 

of having a constitution is the faithful application and 
interpretation of that instrument. 

To be sure, constitutional law, as all law, evolves and 
develops over time. Nevertheless, to live under the Constitution 
does not mean that anything goes as long as it is approved by 
five out of nine nonelected guardians assembled as the Supreme 
Court of the United States. Vie must keep in mind that judges who 



3249 


are free to operate as a continuing constitutional convention 
may, as they have done in the past, adopt doctrines that may 
diminish our liberties and override compassionate interventions 
by government. 

It is my view that Judge Bork has a more profound 
understanding of the essential nature of American 
constitutionalism than has been reflected by many of his 
critics. Contrary to the impression created by these hearings — 
which have already done a great amount of harm — this country is 
held together by the rule of law, not by the rule of judges. As 
Judge Learned Hand once said: "(I In a society which evades its 
responsibility by thrusting upon the courts the nurture of (the 
spirit of moderation!, that spirit in the end will perish.** 

It would be ironic if, in this bicentennial year, the Senate 
were to oppose Judge Bork because he believes, correctly, that 
judges, like all other government actors, are bound by the 

t p ? 

Constitution and should make its meaning the starting point of 
all interpretations. It would be ironic if in this bicentennial 
year, the Senate were to seek to legitimate a change in our form 
of government from one based on the rule of law and the 
Constitution to one based on the rule of judges who have cut 
their moorings to the basic charter — and who have been chosen 
by a highly politicized process that obscures the crucial and 
delicate Issues involved. 



3250 


The Chairman. Thank you. 

Dean Davenport. 

TESTIMONY OF RONALD R. DAVENPORT 

Mr. Davenport. Yes, I am next. I want to second what Deem 
Casper has said. I have a statement I think all of you have, which I 
would like to have admitted for the record. 

The Chairman. Without objection, it will be placed in the record. 

Mr. Davenport. And so that things might move along because 
seven deans—that is a lot of deans—I will summarize what I have 
to say, Mr. Chairman. 

The Chairman. Appreciate it. 

Mr. Davenport. I have known Judge Bork for 25 years. I was a 
student of his in New Haven and, at that time, I had many oppor¬ 
tunities to discuss with him the issues of that day. I found him an 
open, energetic and balanced man. Over the past 25 years, we have 
had a number of professional associations. I think he is a bright 
man and able scholar and is brilliant in his approach. I taught con¬ 
stitutional law at Duquesne for 13 years and one of the things I 
said to my students was, that keep in mind that no matter what 
your philosophy, no matter how liberal or how conservative, at 
least one-half the time, the people that you did not trust would be 
in power. 

And that as we gave meaning to those words in the Constitution, 
that we should be sensitive to that fact. I have debated the issues 
about which Judge Bork has been criticized. I taught and was dean 
at a Catholic institution and at that institution, one of our most 
important persons was St. Thomas Aquinas. I believe that I para¬ 
phrase him when I say that he said, if you were to persuade a man 
as to the justness of your cause, you must first go to where he is 
and bring him to you. Too often in our society, we talk at each 
other and not to each other. I believe that the questions that Judge 
Bork raised in the course of his work over the past 25 years were 
things that other people thought. 

Judge Bork wrote and spoke what other people thought and by 
bringing them out, we could have an honest dialogue so that we 
can move this society forward. Now, I have not always agreed with 
Judge Bork and what he said and, frankly, I would be hard pressed 
to find someone with whom I did agree all the time, but I can say 
that he brings to my experience with him and his experience as a 
judge, an honesty and integrity and an openmindedness. 

Finally, Mr. Chairman, 16 years ago, I was approached to com¬ 
ment on the selection of two men for the Supreme Court. I said at 
that time that the most important consideration is honesty and in¬ 
tegrity. That if a person were honest and open, that you had an 
opportunity to persuade him or her as to the correctness of your 
ideas. I believe that Judge Bork does bring that to the table. At 
that time—some 16 years ago—I was not as convinced about one 
person and I said so at that time. 

I would say, in closing, that it is very important that the dia¬ 
logue we have had, as a country, be kept at a level where we can 
effectively make judgments as to the honesty, competence and 



3251 


quality of the men or women that we would place on our Supreme 
Court. Thank you. 

[Prepared statement follows:] 

PREPARED STATEMENT OF RONALD R. DAVENPORT 

I have known Judge Bork for over 25 years. As a graduate student at the Yale 
Law School, I took his course in Antitrust Law. This was Judge Bork’s first year at 
Yale and I had many opportunities to engage him in spirited debate on the issues of 
that time. I found him then to be open, approachable, and balanced. Over the past 
25 years both in his career at Yale, his career as Solicitor General, and as a judge 
on the Court of Appeals for the District of Columbia, our professional relationship 
has continued. Several years ago. Judge Bork spent the day at Duquesne Law 
School and spoke to our law alumni. Judge Bork is a bright, able, and energetic 
scholar. He has a sharp, questioning, and demanding mind. Although I do not share 
all of his conclusions and approaches, I nonetheless believe that he brings to the 
court, not only intellectual brilliance, but an open and inquiring mind. 

Judge Bork has been criticized for many things that he has written over the 
course of his long and distinguished career. It is my judgment that a distinction 
must be drawn between what a professor says and writes and what a judge does. 
Professors are paid to make students think, they are paid to make courts think, 
they are paid to ask the hard questions which sharpens the legal reasoning process. 
Professor Bork wrote and spoke what other people thought. Judge Bork, however, 
has demonstrated in his role as Judge a recognition of the difference between theo¬ 
rizing and judging. Judge Bork’s career as a Judge and his testimony before this 
committee clearly reflects his respect for and commitment to stare decisis. 

It is understandable that his intellectual aggressiveness, the power of his observa¬ 
tions, and his criticisms of Shelly v. Kramer, or Brandenburg v. Ohio and Bakke, 
would, of course, raise questions and concerns. Too often in our public dialogue, we 
talk at each other not to each other. We do not reveal the underlying principles 
upon which we may disagree. The brilliance of Judge Bork is such that as a profes¬ 
sor he made those of us who may or may not have shared his views think long and 
hard about our ideas and their acceptability in the marketplace. To paraphrase 
Saint Thomas Acquinas, if you would persuade a man as to the justness of your 
cause, you must first go to where he is and bring him to you. 

Sixteen years ago I was asked by the American Bar Association’s Judiciary Com¬ 
mittee to comment on the nomination of two justices to the Supreme Court. I said at 
the time and would say now that a Supreme Court justice needs intellectual compe¬ 
tence, that he or she must be personally honest, i.e., he or she should have a mind 
open to new ideas or new ways of looking at old ideas and, finally, in the context of 
that era, I suggested that a Supreme Court nominee must have an understanding of 
the complex forces at work in our society. More particularly, he or she must appre¬ 
ciate the pressures and strains our society put forward by management, by unions, 
by students, by blacks, by poor whites, by the disaffected and by those people who 
feel that society is too permissive. In short, he or she must understand all the com¬ 
peting forces that were then and now at work. In addition, I stated at that time it 
did not matter whether or not the nominee were a liberal or a conservative. That, 
in my judgment, was and continues to be an irrelative question. It was then and it 
is now sufficient that the person be intellectually honest and open to new ideas. 

Over the 13 years that I had occasion to teach Constitutional Law at Duquesne 
University, I tried to remind the students that no matter what their philosophy, no 
matter how liberal or conservative, at least one half the time the people that they 
did not trust would be in power. That as they attempted to give the words of the 
Constitution meaning they should be aware that the individual justices, the Presi¬ 
dent, or the Congress may or may not in the future reflect the views and aspirations 
they hold dear. It was my concern then and it is my concern now that we as a 
people have a full understanding of the tradeoffs we make as we choose one course 
over the other. The question is not judicial activism or judicial restraint, but an un¬ 
derstanding of the competing values and concerns at work in our society. That we 
are mindful in the words of Justice Felix Frankfurter “the power of the court is 
neither of the person or of the sword but moral suasion.” 

I am confident that if Judge Bork is confirmed, he will not treat his elevation to 
the Supreme Court as a roving commission to rewrite the Constitution. In fact, to do 
so would be violence to his deep respect for the concept of judicial restraint. Judge 
Bork is a warm and sensitive man who, in my judgment, will bring to the Court a 
deep respect and concern for the rights of all citizens. 


88-37^ 0-89-18 



3252 


The Chairman. Thank you, Dean. Mr. Ambassador, it is good to 
have you here. I am tempted to ask you about the INF agreement, 
more than anything else. 

Mr. Rostow. Not in those 5 minutes, Mr. Chairman. 

The Chairman. No, I will not. I will refrain, but I would like the 
benefit of your- 

Mr. Casper. Mr. Chairman, may I remind you of the neutral 
principle? We were going by alphabet. 

The Chairman. I beg your pardon. I was just going down the line 
here. I am sorry. Help me out. I guess “F” is next. Dean, welcome 
and I stand corrected. 

Mr. Frankino. Mr. Chairman, if I may, I would like to correct 
the record. You had identified me as dean of the Catholic Universi¬ 
ty Law School. I was until January. I am presently dean of the Vil- 
lanova Law School in Villanova, PA. 

The Chairman. I beg your pardon. Thank you for the correction. 
Both fine universities. 

TESTIMONY OF STEVEN FRANKINO 

Mr. Frankino. I have known Judge Bork since 1975. It is a per¬ 
sonal pleasure for me to offer testimony in support of his confirma¬ 
tion. My testimony is my own and does not represent the views of 
any institution or persons with whom I am associated. 

I can add little to the substance of the testimony of the past 
weeks; however, there are two perspectives I would like to empha¬ 
size: Judge Bork’s impact on legal education and his reputation as 
a judge. Great attention has been focused on Judge Bork’s speeches 
and lectures. What has not been emphasized is their context. After 
the mid-1960’s, the ideological spectrum of legal education general¬ 
ly narrowed. Those of us who were comfortable within that per¬ 
spective did not fully appreciate that some of our students, and 
many legal professionals, were not with us. 

Judge Bork and others mounted a campaign to redress the bal¬ 
ance. The vigor they brought to the platforms was in no small part 
designed to open up the law schools to under-represented ideas and 
values. The development of the federalist society chapters within 
law schools provided outlets and fora for students and faculty who 
wished to explore law beyond contemporary orthodoxies. This has 
been a significant contribution. It has encouraged the return of a 
full spectrum of viewpoints to legal education. If the rhetoric of 
Judge Bork and his colleagues was sometimes pointed, heated and 
even caustic, it was because the barriers to their being heard were 
so formidable. 

The movement which they led has achieved some notable suc¬ 
cesses. New faculty are adding intellectual and ideological plural¬ 
ism to our classrooms and students are exploring law from more 
perspectives. Judge Bork’s lectures must be placed in this context. 
They were purposely at the cutting edge, were often tentative and 
exploratory, and ever-evolving. They were designed to invigorate 
the movement for wider dialogue. The result has been greater bal¬ 
ance, which allows legal education to make a more valuable contri¬ 
bution to our nation’s legal system. 



3253 


In discussing the body of his scholarship as a professor, his legal 
briefs as Solicitor General, and his opinions as a judge, Judge Bork, 
in his testimony, underscored the differences in his roles. The 
nature of a lawyer as a scholar, an advocate, and as a judge, re¬ 
quires different forms of expression and different qualities of judg¬ 
ment and forbearance. Judge Bork’s scholarship can only be fairly 
evaluated in light of his status at the time of the writing. They are 
a brilliant example of a law professor doing what he is appointed to 
do. They demonstrate that Judge Bork took his academic responsi¬ 
bility seriously. 

As Professor Mary Ann Glendon of Harvard Law School has 
written: “Judge Bork’s critics have addressed themselves primarily 
to the positions taken in his scholarly writings where he and they 
have been engaged in spirited debate over the years. Judge Bork, 
unlike many of his critics, is able to distinguish between the role of 
a professor in building theory and the role of a judge, applying 
practical reason to real-life situations.” 

During most of Judge Bork’s service on the D.C. Circuit Court, I 
was actively involved in the legal life of the District of Columbia. 
My work brought me in frequent contact with lawyers who actively 
practiced before him. I have never heard it suggested that Judge 
Bork was an ideologue or a judge with an agenda. Those who prac¬ 
tice in the Court of Appeals of the District of Columbia have 
praised Judge Bork’s openmindedness and fairness. He has evi¬ 
denced no idiosyncratic approach to the judicial function. 

I have, on a number of occasions, attended lectures and speeches 
of Judge Bork on the nature of the judiciary. There is nothing radi¬ 
cal or unusual in his approach. In fact, he is in accord with what I 
have understood to be the traditions of the common law and the 
positions of great American jurists. There are other approaches to 
the judicial function, but to characterize Judge Bork’s as outside of 
current legal thinking is, in my opinion, simply not accurate. 

The quest to predict what an appointee will do after confirma¬ 
tion is not a very fruitful exercise. A colleague at Villanova re¬ 
ferred me to a 1972 American Bar Association Journal article by 
Senator Barry Goldwater entitled “Political Philosophy and Su¬ 
preme Court Justices.” It demonstrates from 12 historic precedents 
the futility of that quest. Rightly showing that nine of the 12 most 
highly regarded Supreme Court Justices, including Justices Bran- 
deis, Hughes, and Frankfurter, would have satisfied the kind of 
scrutiny applied to Judge Bork. In fact, this historic perspective 
leads to a prediction that ten years from now, Judge Bork’s present 
critics may well be his strongest supporters. 

My personal opinion is that Judge Bork is outstanding in every 
respect. When the novel issues of the next decade are ready for de¬ 
cision, we will be fortunate to have his intellect, judgment and ca¬ 
pacity for growth as a part of the U.S. Supreme Court. Thank you. 

[Statement of Mr. Frankino follows:] 



3254 


Testimony 

Senate Committee on the Judiciary 
September 29, 1987 
Steven P. Frankino 

I have known Judge Robert Bork since 1975. It is a personal pleasure to 
offer testimony in support of his Confirmation. My testimony is my own and does 
not represent the views of any institution or persons with whom I am associated. 

I can add little to the substance of the testimony of the past weeks. There 
are two perspectives I would like to emphasize: Judge Bork’s impact on legal 
education and his reputation as a judge. 

Great attention has been focused on Judge Bork’s speeches and lectures. 
What has not been emphasized is their context. 

After the mid-1960s the ideological spectrum of legal education generally 
narrowed. Fhose of us who were comfortable within that perspective did not fully 
appreciate that some students and many legal professionals were not with us. Judge 
Bork and others mounted a campaign to redress the balance. The vigor they brought 
to the platforms was in no small part designed to open up the law schools to 
underrepresented ideas and values. The development of Federalist Society chapters 
within law schools provided outlets and fora for students and faculty who wished 
to explore law beyond contemporary orthodoxies. This has been a significant 
contribution. It has encouraged the return of a full spectrum of viewpoints to legal 
education. If the rhetoric of Judge Bork and his colleagues was sometimes pointed, 
heated and even caustic, it was because the barriers to their being heard were so 
formidable. 

The movement which they led has achieved some notable success. New 
faculty are adding intellectual and ideological pluralism to our classrooms. Students 
are exploring law from more perspectives. 



3255 


Steven P. Frankino 
Page Two 


Judge Bork's lectures must be placed m this context. They were 
purposefully at the cutting edge, were often tentative and exploratory and ever 
evolving. They were designed to envigorate the movement for wider dialog. The 
result has been greater balance which allows legal education to make more valuable 
contributions to the legal system. 

In discussing his body of scholarship as a professor, his legal briefs as 
Solicitor General and his opinions as a judge, Judge Bork in his testimony underscored 
the differences in his roles. The nature of the lawyer as a scholar, an advocate 
and as a judge requires different forms of expression and different qualities of 
judgment and forbearance. 

Judge Bork’s scholarship can only be fairly evaluated in light of his status 
at the time of the writing. They are a brilliant example of a law professor doing 
what he is appointed to do. They demonstrate that Judge Bork took his academic 
responsibility seriously. As Professor Mary Ann Glendon of Harvard Law School 
has written: 

"Judge Bork’s academic critics have addressed themselves 
primarily to positions taken in his scholarly writings where 
he and they have been engaged in spirited debate over the years. 

But the best indication of what Robert Bork will be like as a 
Supreme Court Justice is the five-year career of Robert Bork 
as a Circuit Court judge....Judge Bork, unlike many of his critics 
is able to distinguish between the role of professor in building 
theory and the role of judge applying practical reason to real-life 
situations." 

During most of Judge Bork's service on the D. C. Circuit Court I was 
actively involved in the legal life of the District of Columbia. My work brought 
me in frequent contact with lawyers who actively practiced before him. I never 



3256 


Steven P. Fran kino 
Page TTiree 

heard it suggested that Judge Bork was an ideologue or a judge with an agenda. Those 
who practice in the Court of Appeals have praised Judge Bork's openmindedness 
and fairness. He has evidenced no idiosyncratic approach to the judicial function. 

I have on a number of occasions attended lectures and speeches Judge 
Bork has delivered on the nature of the judiciary. There is nothing radical or unusual 
in his approach — in fact, he is in accord with what I have understood to be the 
traditions of the common law and the positions of many great American jurists. 
There are other approaches to the judicial function but to characterize Judge Bork’s 
as outside of current legal thinking is in my opinion simply not accurate. 

The quest to predict what an appointee will do after confirmation is not 
a very fruitful exercise. A colleague at Villanova referred me to a 1972 ABA Bar 
Journal article by Senator Barry Goldwater, titled ’’Political Philosophy and Supreme 
Court Justices." It demonstrates from twelve historic precedents the futility of 
that quest wryly showing that none of the twelve most highly regarded Supreme 
Court Justices, including Justices Brandeis, Hughes and Frankfurter, would have 
satisfied the kind of scrutiny applied to Judge Bork. In fact, this historic perspective 
leads to a prediction that ten years from now Judge Bork's present critics may well 
be his strongest supporters. 

My personal opinion is that Judge Bork is outstanding in every respect. 
When the novel issues of the next decade are ready for decision, we will be fortunate 
to have his intellect, judgment and capacity for growth a part of the United States 
Supreme Court. 



3257 


Senator Heflin. I believe Dean Holland, you are the next, alpha¬ 
betical in order. 

TESTIMONY OF MAURICE HOLLAND 

Mr. Holland. Thank you, Mr. Chairman. I would like to say at 
the outset that in the testimony I am about to give and in the pre¬ 
pared statement I previously have submitted to the committee 
through its chief counsel, I speak only for myself and not on behalf 
of any institution with which I am affiliated. 

As a witness whose testimony comes near the end of these hear¬ 
ings, my difficulty is in finding anything to say that would not sub¬ 
stantially repeat what others more authoritative and eloquent than 
I have already said in support of this distinguished nominee. On 
the other hand, there is perhaps one advantage in coming so late 
and that is, it does allow me, with the committee’s indulgence, to 
reflect back on some of what has transpired in these proceedings 
and to share with the committee some thoughts that have occurred 
to me about what you have heard. 

The nomination of Judge Bork has evoked a response, a reaction 
which makes it, to my mind, the most extraordinary Supreme 
Court nomination of modern times. At least, since the Brandeis 
nomination of 1916. What strikes me as nearly unique about it is 
not that it has proved controversial, or that political passions have 
become engaged, but rather, it is the extraordinary division of opin¬ 
ion among knowledgeable people of the highest repute and stand¬ 
ing, people whose qualifications to speak and whose motives in 
doing so cannot fairly be questioned. 

Consider the number, standing and qualifications of those who 
have appeared before you in support of this nomination. I would 
ask you to reflect back particularly on some of those who have ap¬ 
peared of surpassing stature, many of them at a stage in their ca¬ 
reers to be beyond ambition, many of them aligned on different 
sides of political and economic questions from those associated with 
the nominee prior to his appointment to the bench. 

For example, retired Chief Justice Warren Burger told you that 
he regarded Judge Bork as among the most eminently qualified 
nominees of the last 50 years and declared his judicial philosophy 
to be as much within the mainstream as his own. Who could possi¬ 
bly be a more compelling or credible witness than the jurist who 
has just completed 16 years service as Chief Justice of the United 
States? Who could better understand the inner workings of the 
Court and the dynamics of its internal collegiality? Who could pos¬ 
sibly care more about the well-being of the Court or about its conti¬ 
nuity with the work and achievements that marked his own Chief 
Justiceship? Who could speak more disinterestedly without the 
slightest imputation of ulterior motives? 

The power of advice and consent is, of course, given to you Sena¬ 
tors and not to retired Chief Justices. But I would respectfully 
submit that any Senator ought to think very long and hard before 
acting counter to the ringing endorsement of Judge Bork by Chief 
Justice Burger, especially so when that endorsement was seconded 
by as preeminent a figure as Lloyd Cutler, a lawyer whose exper¬ 
tise related to the Supreme Court is equalled by very few and ex- 



3258 


ceeded by none in the United States, a lawyer who accounts him¬ 
self a rather partisan, liberal Democrat and more to the point, a 
steadfast and long-standing advocate of civil rights, civil liberties, 
and equality under the law. 

Then there were the former Attorneys General of the United 
States, reaching back to the Eisenhower administration, including 
one of the towering figures of American legal thought, former At¬ 
torney General, professor, dean, and President Edward Levi. Also, 
former Attorney General Griffin Bell. Is it really credible to believe 
that men like Edward Levi, William Rogers, William Saxbe, Griffin 
Bell, and William French Smith would endorse for confirmation to 
the Supreme Court a nominee who would, as professor Tribe 
prophesied, create chaos on the Supreme Court? 

When such respected scholars as Dick Stewart of Harvard, Dan 
Meador of Virginia, Henry Monaghan of Columbia, Forrest McDon¬ 
ald of Alabama, and my fellow panelists here today, so enthusiasti¬ 
cally and unreservedly support a nominee, would they do so for a 
nominee lacking in distinguished qualifications, including qualifica¬ 
tion by reason of judicial philosophy? Of course, many people of 
stature and standing and high qualifications have appeared in op¬ 
position to this nomination. 

Surely such respected and knowledgeable figures as Secretary 
Hufstedler, Secretary Coleman, former Attorney General Katzen- 
bach, Mayor Young, such distinguished practitioners as John 
Frank, Robert Meserve, academics such as Barbara Jordan, John 
Hope Franklin, Walter Dellinger, Philip Kurland, and Laurence 
Tribe—these are people who are entitled to be taken seriously as 
well. 

Given the quality and repute of the opposing witnesses, does that 
not leave the matter of endorsements versus protestations pretty 
much of a wash, so that each Senator is left to resolve this matter 
without much regard to this factor? 

With the greatest respect to the opposing witnesses, I would 
answer that it does not. My reasons for saying this derive largely 
from what struck me as perhaps the most useful bit of testimony 
submitted to this committee in the entire course of the hearings. 
And that was Professor Dan Meador’s suggestion of some neutral 
principles for the guidance of the Senate’s deliberations—neutral 
principles that are desperately needed. 

Professor Meador urged that granting a nominee’s character and 
professional competence, both of which should be assessed by rigor¬ 
ous standards, the Senate’s concern with the matter of judicial phi¬ 
losophy should be limited to one of assuring itself that it is in the 
mainstream. 

That assurance, in turn, should be tested by the Senators asking 
themselves the following questions: 

Is confirmation of this nominee supported by a substantial array 
of lawyers and legal scholars who, themselves, are well regarded 
and come from various parts of the country and diverse legal set¬ 
tings? 

Second, do the nominee’s views about various legal topics and 
doctrines, and the task of interpreting the Constitution—do these 
have substantial support among other judges, lawyers and legal 
scholars? 



3259 


And third, in the case of a nominee who is a lower court judge, 
has that lower court judge proved to be a lone wolf, an eccentric, a 
continual dissenter? 

1 suggest along with Professor Meador that the answer to those 
three questions are, “Yes,” “Yes,” and “No.” That is, no, Judge 
Bork certainly has not been a frequent dissenter, but 95 percent of 
the time, as I understand the record, in the majority. 

What, then, distinguishes as a group and in the aggregate, those 
witnesses who have appeared before you in support of this nomina¬ 
tion from those who have testified in opposition. I do not contend 
that these groups differ from one another in quality, knowledge, 
purity of motive in offering their testimony, although I would con¬ 
tend that the highly commendatory testimony of Chief Justice 
Burger has a special, unique resonance and authoritativeness, espe¬ 
cially as he was, himself, a jurist appointed with very specific ex¬ 
pectations on the part of the President who nominated him, but 
whose steadfast independence, once on the Court, almost certainly 
disappointed those expectations. 

What strikes me as the salient difference between these two 
groups comes down essentially to this: One could easily imagine 
many of the people who have spoken in support of this nomination 
also appearing a few years later strongly supportive of the nomina¬ 
tion of a highly qualified liberal, such as Secretary Hufstedler or 
Professor Tribe. 

One could readily imagine even more of Judge Bork’s supporters, 
such as Attorney General Levy, William Rogers and Dan Meador, 
certainly not actively opposing the confirmation of a highly quali¬ 
fied, liberal nominee. 

One cannot readily imagine those who have testified against this 
nomination supporting a highly qualified conservative nominee, 
even one who, as Lloyd Cutler described him, is a moderate con¬ 
servative. 

The difference between the two groups, it seems to me, is that 
the witnesses who have spoken in opposition have said, in effect, 
that Judge Bork's judicial philosophy is not the one they prefer, 
and they are asking this committee and the Senate to become an 
enforcer of that preference—an enforcer of their jurisprudential or¬ 
thodoxy. 

On this much-debated question of the relevance, and the concern 
of the Senate with judicial philosophy, it seems to me that the 
Senate is entirely entitled, and in fact obligated to ensure that the 
nominee, in addition to the qualifications of character and ability, 
must be in the mainstream, broadly defined. 

But I would urge this committee and the Senate not to engage in 
fine-tuning speculation about what particular branch or species of 
judicial philosophy the nominee has, or try to project into the 
future how the nominee might vote in various alignments. 

1 do that because history shows the futility of that, how little can 
be reliably inferred for the future from the past. I urge the Senate 
and this committee to take very seriously the neutral principles 
proposed by Professor Meador, because I believe the application of 
such principles will be the best way to deal with this confirmation 



3260 


in a proper and dignified way, and to avoid an aggravation of the 
phenomenon noted by Dean Casper in his testimony. 

Thank you, Mr. Chairman. 

[Statement of Mr. Holland follows:] 



3261 


PREPARED STATEMENT OF DEAN MAURICE J. HOLLAND 


Submitted to the Committee on the Judiciary of the United States 
Senate, Hon, Joseph R. Biden, Jr^ Chairman Presiding in 
Connection with the Hearing on the Nomination of Hon. Robert H. 
Bork to be an Associate Justice of the United States Supreme 
Court. 


My name is Maurice J. Holland. I am Dean of the School of Law 
and Professor of Law at the University of Oregon, and live in 
Eugene, Oregon. This statement is submitted on my own behalf 
personally and not on behalf of any institution with which I am 
af filiated. 

Opponents of Judge Bork's nomination have frequently spoken and 
written as though he had been nominated to become the Supreme 
Court of the United States. They have expressed apocalyptic 
fears that, if confirmed, he would single-handedly "set the clock 
back" and overturn decades of Supreme Court decisions. Simply in 
the interest of proper perspective, I think it is worth noting 
the obvious fact that Judge Bork has been nominated to be one of 
nine Justices. This means of course that his vote in any case 
will not determine its outcome except to the extent he succeeds 
by the force of his reasoning in attracting the votes of at least 
four other Justices to his position. I do not believe that he is 
anything resembling the "extremist" or "rigid ideologue" some of 
the opponents of his nomination have depicted, but even if he 
were, then for any of the dire things such opponents have 
forecast to actually occur, one would have to believe that at 
least four of the present Justices could be persuaded to concur 
with Judge Bork in his supposedly extremist or rigidly 
ideological views. This consideration is not, of course, an 
affirmative reason for the Senate to confirm any nominee to the 
Supreme Court, since any nominee would become only one of nine 
Justices, but simply to dispel some of the incredible hyperbole 
provoked by this nomination so that it can be fairly and 
rationally considered on its own specific merits. 

Judge Bork's nomination has also provoked much debate and 
discussion about the proper role of the Senate in granting or 
withholding consent to Supreme Court nominations. On this issue 
I might be breaking ranks with some of the supporters of this 
nomination, since I believe the Senate’s role to be a very 


1 





3262 


substantial and important one, and that its inquiry should be 
considerably more searching than when screening Executive Branch 
appointments. This does not in the least discomfit me in 
supporting this nomination, as I firmly believe that Judge Bork 
does emphatically meet the rigorous standards the Senate should 
properly insist upon. 

The Senate should insist that any nominee for the Supreme Court 
possess in high degree: first, attributes of personal character, 
honesty, and integrity such that both the Senate and the country 
can have the full confidence that he or she will if confirmed 
scrupulously abide by the Canons of Judicial Ethics and all other 
ethical constraints on judicial conduct; secondly, eminent 
qualifications by way of learning in the law and education, 
experience and distinguished attainment in the legal profession; 
and thirdly, a judicial philosophy and an understanding of the 
Constitution of the United States, the role of the Supreme Court, 
and the institution of judicial review that is within the quite 
broad bounds of respected and informed opinion on these difficult 
and delicate matters. With regard to the latter of these 
qualifications, I do not think it appropriate for the Senate to 
require that any nominee's judicial philosophy necessarily agree 
with that of a majority of its members, or that any nominee's 
judicial philosophy be at the center point of the aforementioned 
range of respected and informed opinion. For the Senate to 
impose a rigidly or narrowly delineated centrist standard with 
respect to judicial philosophy would mean that some of the 
greatest of Supreme Court Justices, such as Brandeis, Douglas, 
Black, Holmes and the present Justice Marshall might well have 
been denied confirmation and the country would have been the 
poorer for their defeats. 

I shall discuss the first two of the above standards, moral 
integrity and professional fitness, only briefly since it seems 
to me that Judge Bork easily meets both of them. I am aware of 
nothing in the record of his private life, or in the record of 
his quite extensive public life, to suggest anything other than 
that Judge Bork has met, and as a Justice would meet, the most 
stringent of ethical standards of rectitude, probity, and honesty 
rightly demanded of a judge. He has twice been subjected to 
exacting background investigations entailed in appointment to 
high office, most recently judicial office, and has twice been 
unanimously confirmed to those offices by the Senate. 

As to professional fitness nearly all even of his severest 
critics have conceded that Judge Bork fulfills that requirement 
in remarkably high degree. He is not merely an intelligent 
lawyer, but is rather one of the most accomplished and 
distinguished legal scholars of his generation. He was a long 
time member of the faculty of one of the nation's leading law 
schools, an author who has published prolifically and can number 
among his books and articles some of the most influential 


2 



3263 


writings of the past three decades in the fields o£ 
constitutional and antitrust law. But he would bring to the 
Court far more than his extraordinary academic attainments. He 
has extensive experience as a practitioner, both as member of a 
private firm and at the summit of legal practice as Solicitor 
General of the United States. Finally, for the past five years, 
he has been a judge of the court which many rank second in 
importance and in the challenge of its docket to the Supreme 
Court, the Court of Appeals for the District of Columbia Circuit. 
In fact, leaving aside for the moment the matter of judicial 
philosophy with which I shall next deal, Judge Bork would seem to 
be not merely a highly qualified nominee, but to closely 
approximate the absolute ideal of what a Supreme Court nominee 
ought to be. 

But, as everyone knows, it is precisely judicial philosophy that 
is the rub, or as it is sometimes put, “ideology 1 ' or “political 
views." "Ideology" seems to have become little more than a 
promiscuously used epithet to disparage principles and 
convictions with which the user strongly disagrees. Thus that 
term is perhaps best put aside. Similarly, I hope and trust it 
is common ground that although the White House often does take 
"political views" into account, the Senate should not accord them 
any substantial weight lest the confirmation process break down 
in impasse whenever the Presidency is controlled by one party and 
the Senate by the other. I should hope it goes without saying 
that being a Reagan Republican, assuming for present purposes 
that is indeed what Judge Bork is, is not for the Senate a 
disqualifying factor in any judicial nominee. Were it otherwise 
partisanship would become too heavily and overtly injected into 
the process of selecting members of what must, above all other 
things, remain a scrupulously non-partisan institution. 

It is surely on the basis of the judicial philosophy attributed 
to him, in a manner that has often partaken of gross caricature 
and serious distortion, that Judge Bork’s nomination has become 
so controversial. Across the nation, interest and advocacy 
groups, on both the left and the right, those both in support and 
opposition, have addressed the issues posed by this nomination in 
terms of placard card slogans, as though the function of the 
Supreme Court were to help one group or another, to advance this 
or that agenda — in short, to compete with the Congress and the 
President in the political role of formulating public policy. 
Interst and advocacy group politics is entirely appropriate for 
the selection of Presidents and Governors, Senators and 
Representatives, and state legislators, but the manner of and 
criteria for selecting Justices must be very different. It is 
both ironic and depressing to witness so many elected officials 
of government encouraging these interest and advocacy groups to 
think about this nomination in terms that would be perfectly 
appropriate if Judge Bork were seeking appointment to a 
superlegislature. It is ironic because the judicial philosophy 


3 



3264 


with which Judge Bock is associated would accord greater 
authority and responsibility to elected officials, whereas the 
judicial philosophy espoused by the opponents of this nomination 
would accord them less of both. Judge Bork does not, for 
example, appear to think that, stare decisis aside, the 
Constitution would empower him as a Justice to decide under what 
circumstances abortion should be legally available, but does 
believe that question should be decided by the people's elected 
representatives, so many of whom seem to oppose his confirmation 
for predominantly that precise reason. Further encouraging the 
widespread distortion of the Supreme Court's role, many elected 
officials have even said that a Justice Bork would take away 
women's access to abortion, forgetting or concealing the fact 
that only they possess the authority to do that. 

Some years ago Dean John Hart Ely wrote an important book 
entitled Democracy and Distrust , the thrust of which is that as a 
nation were are committed to democratic decisionmaking as the 
norm, but qualified by some residual distrust of unalloyed 
major i tarianism. Judicial review as exercised by the Supreme 
Court is the institutional embodiment of that distrust, and is 
almost by definition undemocratic if not anti-democratic. Judge 
Bork has never questioned the continuing need for judicially 
enforced restraints on sheer majoritarianism or the obligation of 
the courts to protect the rights of minorities and individuals. 
But his judicial philosophy is perhaps somewhat less distrustful 
of democracy and of the people’s elected representatives than are 
many of the opponents of his nomination. This is how the matter 
should honestly and forthrightly be put to the American people by 
anyone who would responsibly elucidate the debate among them. 

Judge Bork has repeatedly stated his unreserved agreement with 
the fundamental proposition that it is “emphatically the province 
of the judiciary to say what the law is," and that the law of the 
Constitution must prevail over majoritarian decisionmaking, and 
as a Court of Appeals judge he has acted on that agreement. But 
he is, in turn, somewhat more distrustful than many of his 
opponents of the legitimacy of judges finding new rights in the 
Constitution, which amount to new shackles upon democratic 
governance, rights that are not even suggested by the text of the 
document, much less stated in its language, rights which the 
historical data indicate formed no part of the intent of the 
framers or ratifiers, rights that were not even hinted at in 
hundreds of Supreme Court decisions handed down for many decades 
after the adoption of the relevant provision or amendment. Part 
of Judge Bork’s nuanced and thoughtfully formulated distrust of 
judges as expositors of a “Living Constitution," or in Justice 
Hugo Slack’s phrase, "making up the Constitution as you go 
along," may perhaps derive from his awareness that such a free¬ 
form, non-interpretivist approach to the Constitution carries 
with it strong temptations to the judiciary to play the heroic 
part and aggrandize its power in derogation of the power 
legitimately confided to the people and their elected 


4 



3265 


representatives. 

Labelling something as complex and multifaceted as a judicial 
philosophy risks sloganeering and oversimplification, but Judge 
Bork's philosophy is conventionally referred to as "judicial 
restraint" and its opposing counterpart "judicial activism." 

There is much that can be, and has been, said in favor of 
judicial activism by people of utmost good will who have thought 
deeply about these vexing issues and whose conclusions are 
entitled to be fully respected. But it seems to me that the 
philosophy of judicial restraint as elaborated by Judge Bork is 
similarly entitled to be respected, and it is nothing less than 
astonishing that it should be characterized by any knowledgeable 
person as "extremist.” At the core of judicial restraint is the 
proposition, asserted by such great jurists as Holmes, Brandeis, 
and Frankfurter, to the effect that since those who enact 
legislation both represent the popular will and have taken oaths 
to uphold the Constitution, judges should indulge a strong 
presumption of constitutionality. This was a nearly unquestioned 
maxim of constitutional law as it was taught and practiced until 
about three decades ago. Judge Bork is in no doubt but that the 
presumption of constitutionality can be rebutted, but would 
insist that it be so only on the basis of principles fairly 
derivable from the the intent of those who authored the 
Constitution and not on the basis of principles picked and chosen 
from the fashionable moral philosophies of the day by judges 
inspired by their personal value system. ft is for legislators 
accountable to the people, not judges not directly so 
accountable, to act on their own personal values and preferences, 
or to represent those of their constituents. 

Judge Bork has been savaged for having ventured to criticize many 
Supreme Court decisions of recent vintage, even though doing 
precisely that is a virtual prerequisite for gaining tenure on 
most law faculties, and certainly at Yale. Some of Judge Bork's 
criticism have been vigorously and trenchantly stated, but that 
is also very much in the tradition of legal academics in this 
country. Perhaps we American law professors should mend our ways 
and follow the example of our English counterparts, among whom 
criticism of judicial opinions is considered a breach of decorum. 
Much has been made by the opponents of his nomination of Judge 
Bork’s criticism of Roe v. Hade , but I am not aware that he has 
said anything substantially different about that decision than 
Justice Byron White who, in dissenting, termed it "an exercise of 
raw judicial power ... an improvident and extravagant exercise 
of the power of judicial review" for which he found "no 
constitutional warrant for imposing such an order of priorities 
on the people and legislatures of the States." Did those words 
make Justice white an "ideologue" or an "extremist"? If they 
did, should not the Congress have moved to remove him from the 
Court by impeachment? Tf, as of course they did not, then how 
can words of comparable purport when written by Professor Bork be 


5 



3266 


cited to make him out an ideologue or extremist? 

Professor Bork was also critical of the reapportionment case, 
Baker v. Carr . In fact it has been charged by some who have 
appointed themselves arbiters of "mainstream opinion" that he has 
criticized that decision in extravagant terms that would never 
have been used by such "mainstream" judicial conservatives as 
Justices Frankfurter or Harlan, But Justice Frankfurter, in his 
dissent, himself criticized the decision as constituting the 
judges 1 "private views of political wisdom the measure of the 
Constitution," which is another way of saying that the decision 
was "unconstitutional," Justice Harlan, with whom Judge Bork has 
been unfavorably compared by so many opponents of his nomination, 
said in his dissent: "Those who consider that continuing 
national respect for the Court's authority depends in large 
measure upon its wise exercise of self-restraint and discipline 
in constitutional adjudication, will view the decision with deep 
concern." Should not Judge Bork's comments on Baker v. Carr be 
attributed to his "deep concern," shared by Justice Harlan, for 
"continuing national respect for the Court's authority," rather 
than to hostility toward that authority? 

The legitimacy of judicial power rests upon very different 
premises from that of the elected branches, which latter derives 
from accountability to the people and from the ability of elected 
officials to make sound, equitable, and farseeing decisions on 
matters of public policy. The "morality of power" as it pertains 
to the judiciary, and preeminently to the Supreme Court given its 
unique position in our frame of government, is a morality of 
process consisting in the passionate commitment to rigorously 
reasoned analysis and openness to rational debate about how and 
when the Constitution's mandates legitimately and authentically 
override decisions conscientiously reached by the political 
branches. The debate to which any proposed Justice must be open 
focuses predominantly on the enormously difficult undertaking of 
separating out those mandates that are validly and objectively 
deducible from the Constitution in contrast to those that are 
largely shaped by what any majority on the Court believes is best 
for the country whea that belief has not been shared by the 
majority of the relevant electorate. As would any jurist whose 
basic orientation is toward judicial restraint. Judge Bork is 
fully aware that all such debates, especially those within the 
Conference of the Supreme Court, are powerfully contrained by 
stare decisis , by precedent, particularly precedent which by 
repeated reaffirmation has become deeply entwined in the fabric 
of constitutional doctrine. At the same time, he has asserted 
that part of the Court's obligation is, on appropriate occasions, 
to reexamine past constitutional holdings m light of its 
evolving understanding of what the Constitution itseLf means. 
Surely no one who does not lament Brown's overruling of Plessv v. 
Ferguson could seriously doubt but that past constitutional 
decisions are not invincibly and invariably sacrosanct. 


6 



3267 


Judge Bork seems to me to be deeply and passionately committed to 
the kind of morality which sustains the legitimacy of judicial 
power. This is not a morality of substantive outcomes as much as 
it is a morality of process, and at the very heart of that 
process is openness to reasoned argument in the form both of 
litigants' briefs and oral arguments and of criticism and 
commentary from scholars and other observers of the Court's work. 
Thus, since his nomination. Judge Bork has steadfastly refused to 
say anything that would encourage his supporters in the pro-life 
movement to persist in their assumption that his would be a sure 
vote to overrule or limit Roe v. Wade . In 1981, before his 
appointment to the Court of Appeals, then Professor Bork 
courageously testified before the Subcommittee on Separation of 
Powers in opposition to the so-called "Human Life Bill," pursuant 
to which Congress would have overriden Roe v. Wade by means of 
ordinary legislation enacted under Sec. 5 of the Fourteenth 
Amendment. He did so because he cared more about the morality of 
process and the preeminent role of the Court in expounding the 
meaning of the Constitution than he did about maintaining his 
standing with the Right-to-Life movement. In fact it was widely 
reported in conservative publications that this testimony had 
prompted the Right-to-Life movement to write off Judge Bork as 
just another "moderate" who cared more about legal technicalities 
than about ending abortion. The contemporaneous rumor that it 
caused the White House to strike Professor Bork from its list of 
possible judicial nominees has now happily been twice proved 
false. 

Judicial philosophy as it pertains to judiciaL review and the 
role of the Supreme Court is a house of many mansions. It 
encloses a broad range of differing views within the confines of 
honorable and thoughtful opinion. Judge Bork's views place him 
well within those confines, and indeed place him within a great 
tradition which includes many of America's finest jurists, 
including Supreme Court Justices. It would be a tragic mistake 
for the Senate, in voting on this nomination, in effect to 
proclaim that mere fidelity to the great tradition of judicial 
restraint is a sufficient reason to withhold its consent to 
confirmation of a nominee so eminently qualified by virtue of 
personal integrity and professional distinction as is Judge Bork. 

The role of the Supreme Court in American government is surely 
the least well understood facet of that government by the 
American people. Much of the popular response to this nomination 
appears to have raised this lack of understanding to new heights 
of ignorance and distortion. It is therefore fitting that the 
Founders lodged the power to confirm Supreme Court nominees with 
the Senate, which should be, and most often in the past has been, 
capable of understanding how delicately that institution is 
related to the morality of process, rather than to the bottom- 
line calculus of substantive results. In acting on this 


7 



3268 


nomination, the Senate has a care opportunity, an opportunity 
both to preserve and reinforce the morality of process and to 
educate the American people in the need to subordinate ordinary 
political concerns and factitious ideological distractions when 
that process is placed in dire jeopardy. 


Respectfully submitted, 


Malucice JT. Holland 


8 



3269 


Senator Heflin. Dean Morgan. 

TESTIMONY OF THOMAS MORGAN 

Mr. Morgan. Thank you, Mr. Chairman. 

I, too, appreciate the opportunity to appear before this committee 
with respect to this crucial nomination. I appear as an individual, 
and my views should not be attributed to Emory University or its 
law school, where I serve on the faculty, and which I served as 
dean from 1980 to 1985. 

My testimony will urge two points. They relate to the concerns 
sometimes expressed here that Judge Bork has seemed to be both 
internally inconsistent over the years, and disrespectful of Su¬ 
preme Court precedent. I believe that both criticisms are unjusti¬ 
fied. 

First the alleged lack of respect for precedent. The reason why 
an academic writer often takes positions that seem critical of prior 
cases is that a law professor is teaching and writing with a differ¬ 
ent focus than is the judge or a practicing attorney. 

A professor who is thoughtful about what he or she is doing rec¬ 
ognizes that students in today’s law schools will be practicing well 
into the next century. Last week’s newsworthy case will usually be 
relatively unimportant to the student over such a legal career. 

What each student will need over a lifetime is the ability to 
reason through the issues which lawyers face. The development of 
that reasoning capacity requires asking fundamental questions un¬ 
derlying our legal system—questions such as: What is the function 
of a court? What are the rules that should limit the President, leg¬ 
islatures, agencies, and the courts themselves as they govern a free 
society? Has the decision failed to give us reasoning that we can 
apply over the years, even if we like the result in the short run? 

Far from being ivory tower issues, the challenge for those of us 
in law teaching is to address such questions seriously, and to help 
our students address them. For it is in developing the ability to 
think seriously, about fundamental issues, that students develop 
the tools with which to tackle the more specific and practical, but 
largely unpredictable, questions that they will face throughout 
their practice. 

Such teaching and writing requires the scholar to challenge the 
reasoning of past decisions, no matter how old or settled, because 
reasoning is what is being examined. Outside of academic life, of 
course, all of us are used to dealing with more concrete expressions 
of the issues. This committee has posed concrete questions to Judge 
Bork, and he has answered. 

Senator Heflin. Dean, I apologize for having to interrupt you, 
but I had to leave to go vote. 

The Chairman. I apologize for these interruptions. The votes we 
have to make. Thank you. 

Mr. Morgan. Thank you, Senator. 

I was simply where I was suggesting that the committee has 
posed concrete questions to Judge Bork, which he has answered, in¬ 
sofar as propriety permitted, both in hypothetical form and by 
pointing to his nonacademic record. And that is as he should 
answer those concrete questions, because to see how he thinks 



3270 


about specific issues one must look to the portion of Judge Bork’s 
career in which he has worked in specific cases—to his record as 
an advocate and as a judge. 

It is in those two roles that he has been required to determine 
how important general principles apply to particular human indi¬ 
viduals. When faced with situations where his general theory runs 
up against his obligation to adhere to settled law, he has been 
obliged to follow precedent, and he has. His record as a judge and 
advocate is clearly outstanding, as, I believe, would be his work as 
a Justice. 

It has been asked how the committee can be sure that a person 
with Judge Bork’s critical view of the reasoning of many Supreme 
Court cases would, nonetheless, adhere to those cases when on the 
Court himself. 

I can only answer that the fundamental principle that Judge 
Bork has asserted about judging, is that judges themselves must be 
bound by the law. That is his point about the need to ground con¬ 
stitutional decisions fairly in the language of the Constitution. 

If we look at his whole approach, then, not just the criticism of 
individual decisions, we find no basis to doubt that his performance 
as an advocate and judge is the so-called real Robert Bork. There is 
no serious basis to doubt that he would only vote to overrule cases 
in the limited principled circumstances that he has described to 
this committee. 

Second, the charge that Judge Bork is internally inconsistent in 
his positions, and changes them to suit the occasion: I believe that 
quite the contrary is true. I see a consistent thread that runs 
through Judge Bork's work, across his career. In making this point, 
I am to some extent putting words into his mouth, and he should 
not be blamed if I prove inarticulate in doing so. 

But I believe it’s fair to say that one of the central principles 
running through his views can be put in the words of the first prin¬ 
ciple of physicians: Above all, do no harm. In other words, don’t 
make things worse. 

In his antitrust writing, for example, the work that first brought 
Judge Bork to national attention, he consistently asked a basic 
question which others had not been regularly asking: Is the appli¬ 
cation of the Sherman or Clayton Act to a given situation one that 
will make consumers better off, as Congress intended, or will it, un¬ 
intentionally but in fact, do harm to consumers? 

In answering that question he favored strict enforcement of laws 
against price fixing, but opposed enforcement of the antitrust laws 
against innovative firms which were challenging entrenched but 
less efficient ones. He also encouraged allowing mergers which 
were too small to create problems of monopoly, but which would 
improve efficiency, and thus tend to drive consumer prices down. 

‘’Antitrust laws are fine, as long as they tend to solve problems,” 
Judge Bork might say, “but not when they themselves become the 
problem.” 

The Chairman. Even if the Congress wants to make him a prob¬ 
lem? 

Mr. Morgan. I’m sorry. Senator? 

The Chairman. Even if the Congress wishes to create the prob¬ 
lems he’s attempting to solve? 



3271 


Mr. Morgan. I think it’s absolutely clear, Mr. Chairman, that 
Judge Bork would enforce a law which Congress passed, which spe¬ 
cifically spoke to a given situation. Actually, he has not had any 
such antitrust cases on the court of appeals. Presumably, if he 
were testifying as a private citizen on the bills he would urge the 
kind of views that I have attributed to him here. 

There could be other illustrations of this principle, as well, but 
finally I will close with the issue of privacy. 

There are few deeper ironies in this hearing than the portrayal 
of Robert Bork as opposed to liberty. His whole career is consistent 
with the view that concepts of limited government, and human 
freedom, run throughout the substance and structure of the Consti¬ 
tution. 

What Judge Bork properly fears, however, is that a Supreme 
Court which adopts a legal test which is not grounded in a fair 
reading of the Constitution is a Court that potentially can do more 
harm than good. It may make up the law in a way that you and I 
like today, but it could restrict our rights as easily tomorrow. 

No one can be against privacy—yours or mine or Judge Bork's. 
But Judge Bork has been asserting an important and, I believe, a 
mainstream principle: The scope of legal redress must end when 
taking it farther would tend to do more harm than good. 

Much has been written about what Judge Bork said in 1971. 

The Chairman. Are you summing up. Professor? 

Mr. Morgan. Yes, Sir. 

The Chairman. Thank you. 

Mr. Morgan. I would call your attention to something he wrote 
in 1984, after he became a judge, and well before any argument 
about confirmation conversion. He called it, “Styles in Constitu¬ 
tional Theory,” and in it he explained how a judge must think 
about great constitutional questions. 

Judge Bork wrote: “The institutions and traditions of the Ameri¬ 
can Republic, including the historic Constitution, are our best 
chance for happiness and safety. Yet it is precisely these institu¬ 
tions and traditions that are weakened and placed in jeopardy by 
the habit of abstract philosophizing about the rights of man or the 
just society.” 

“Our institutions and traditions were built by and for real 
human beings. They incorporate and perpetuate compromises and 
inconsistencies. They slow change, tame it, deflect and modify prin¬ 
ciples as well as popular simplicities. In doing that, they provide 
safety and the mechanism for a morality of process.” 

Those are not the words of a man with a social agenda to pursue. 
They are not the words of a man who wants to turn back the clock 
on civil rights or on privacy. They are the words of someone who 
has served with distinction, as a professor at one of this country’s 
great law schools, a practicing lawyer, the nation’s chief appellate 
advocate, and judge of one of this country’s most important courts. 



3272 


I respectfully submit that there is simply no one better qualified 
than Robert Bork to sit now as a Justice on the Supreme Court of 
the United States. 

Thank you. 

The Chairman. Thank you, Dean. I think you’ve got it right this 
time. 

[Statement of Mr. Morgan follows:] 



3273 


STATEMENT OF PROFESSOR THOMAS D. MORGAN, EMORY UNIVERSITY 

BEFORE THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE, 
CONSIDERING THE NOMINATION OF HON. ROBERT H. BORK TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES 

SEPTEMBER 29, 1987 

Mr. Chairman and Members of the Committee: 

My name is Thomas D. Morgan. I have the title 
Distinguished Professor of Lav at Emory University, and I 
served as Dean of the Lav School at Emory from 1980 to 1985. 
Apart from a period of military service, I have been a law 
teacher since 1965. 

I appreciate the opportunity to testify before this 
committee with respect to this critically important . 
nomination. I appear as an individual and not on behalf of 
any group or organization. My views should not be attributed 
to Emory University or its lav school. 

My testimony will urge two points. They relate to the 
concerns sometimes expressed here that Judge Bork has seemed 
to be both internally inconsistent over the years and 
dinrespectful of Supreme Court precedent. I believe that 
both criticisms are unjustified. 

First, the alleged lack of respect for precedent. 

The reason why an academic writer often takes positions 
that seem critical of prior cases is that a lav professor is 
teaching and writing with a different focus than is the 
judge or practicing attorney. A professor who is thoughtful 
about what he or she is doing recognizes that students in 
today's law schools will be practicing well into the 21st 
Century. Last week's newsworthy case will usually be 
relatively unimportant to the student over such a legal 
career. What each student will need over a lifetime, 
however, is the ability to reason through the Issues which 
lawyers face. 

The development of that capacity requires asking 
fundamental questions underlying our legal system, questions 
such as; What is the function of a court? What are the rules 



3274 


that should limit the president, legislatures, agencies, and 
the courts themselves as they govern a free society? Has a 
decision failed to give us reasoning that we can apply over 
the years, even if we like the result in the short run? 

Far from being ivory tower issues, the challenge for 
those of us in law teaching is to address such questions 
seriously and help our students address then. For it is in 
developing the ability to think seriously about fundamental 
issues that students develop the tools with which to tackle 
the more specific and practical, but largely unpredictable 
questions that they will face throughout their practice. 

Such teaching and writing requires the scholar to challenge 
the reasoning of past decisions, no matter how old or 
settled, because reasoning is what is being taught. 

Outside of academic life, of course, all of us are used 
to dealing with more concrete expressions of the issues. 

This Committee has posed such questions to Judge Bork and he 
has answered, both in hypothetical form and by pointing to 
his non-academic record. And that is as he should answer, 
because to see how he thinks about concrete questions, one 
must look to the portion of Judge Bork's career in which he 
has worked in concrete cases — to his record as an advocate 
and as a judge. It is in those two roles that he has been 
required to determine how important general principles apply 
to particular human individuals, and when faced with 
situations where his general theory runs up against his 
obligation to adhere to settled law, to follow precedent. 

His record as a judge and advocate is clearly 
outstanding, as would be his work as a Justice. It has been 
asked how the committee can be sure that a person with Judge 
Bork's critical views of the reasoning of many Supreme Court 
cases would nonetheless adhere to those cases when on the 
Supreme Court. I can only answer that the fundamental 
principle he has always asserted about judging is that 
judges themselves should be bound by the law. That is his 
point about the need to ground Constitutional decisions 



3275 


fairly in the language of the Constitution. 

If we look at his vhole approach, then, not just the 
criticism of individual decisions, we find no basis to doubt 
that his performance as an advocate and judge is the "real" 
Robert Bork. There is no serious basis to doubt that he 
would only vote to overrule cases in the limited, principled 
circumstances that he described to you. 

Second, the charge that Judge Bork is internally 
inconsistent in his positions and changes them to suit the 
occasion. 

I believe quite the contrary is true. I see a 
consistent thread that runs throughout Judge Bork's work, 
across his career. In making this point, I am to some extent 
putting words into his mouth, and he should not be blamed if 
I am inarticulate in doing so. But I believe it is fair to 
say that one of the central principles running through his 
views can be put in the words of the first principle of 
physicians: "Above all, do no harm." 

In his antitrust writing, for example, the work which 
first brought Judge Bork to national attention, he 
consistently asked a basic question which others had not 
been regularly asking: Is the application of the Sherman or 
Clayton Act to a given situation one that will make 
consumers better off as Congress intended, or will it — 
unintentionally, but in fact — do harm to consumers? 

In answering that question, he favored strict 
enforcement of laws against price fixing, but opposed 
enforcement of the antitrust laws against innovative firms 
which were challenging entrenched but less efficient ones. 

He also encouraged allowing mergers which were too small to 
create problems of monopoly but which would improve 
efficiency and thus tend to drive consumer prices down. 
Antitrust laws are fine as long as they tend to solve 
problems, Judge Bork might say, but not when they themselves 
become the problem. 

You see the "do no harm" approach as well in the issue 



3276 


of Congressional standing. For his position on that issue, 
judge Bork has been characterized as excessively loyal to 
the executive branch and insensitive to Congress' need for a 
day in court. What he said to you here, however, is 
consistent with what he said in Barnes v. Klein . 759 F.2d 21 
(D.C. Cir. 1985), and with the thesis that I am attributing 
to him. 

Judge Berk has been worried that if the courts are 
receptive to resolving legislative/presidential conflicts, 
disputes will tend forever to wind up in the courts. Thirty 
years ago, for example, it seemed common for major labor 
disputes to be mediated by the Secretary of Labor. Today, it 
is rare. We ultimately came to recognize that if the 
Secretary's office is routinely open in such cases, it 
changes the whole set of bargaining incentives, and not for 
the better. Everyone then bargains wondering whether they 
could do better in the Secretary's office. 

I do not question for a moment — and I am confident 
Judge Bork does not — that disputes between Congress and 
the President involve matters where the stakes for all of us 
are extremely high. Indeed, lately, they often implicate 
questions of war and peace. But they are disputes which 
Congress and the President have many political tools with 
which to resolve. In the old days, we called such issues 
"political questions*' and Justice Frankfurter was 
particularly concerned that the federal courts avoid them. 

Intervention of courts into that policymaking process 
could do more harm than good, Judge Bork has said. And 
whether or not you believe he is right, you can see that his 
view is neither opportunistic nor inconsistent with the way 
he has traditionally approached difficult questions. 

There could be other illustrations, but finally, there 
is the issue of privacy. There are few deeper ironies in 
this hearing than the portrayal of Robert Bork as opposed to 
liberty. His whole career is consistent with the view that 
concepts of limited government and human freedom run 



3277 


throughout the substance and structure of the Constitution; 
they are not even United to the Bill of Eights. 

What Judge Bork properly fears, however, is that a 
Supreme Court which does not consider itself bound by the 
limits of a fair reading of the Constitution is a Court that 
potentially can do more harm than good. It may make up the 
law in a way that you and I like today, but it could 
restrict our rights as easily tomorrow if we fail to insist 
that courts operate within legal standards which are fairly 
traceable to the Constitution or a valid statute. 

Again, no one can be against privacy -- yours or mine, 
but Judge Bork has been asserting a mainstream principle 
that is important: The scope of legal redress must end when 
going farther would tend to do more harm than good. 

Much has been made of what Robert Bork wrote in 1971. I 
would call your attention to something he wrote in 1984 — 
after he became a judge and well before any argument about 
confirmation conversion. It was published in the South Texas 
Law Review and then the Yearbook of the Supreme Court 
Historical Society. He called it 'Styles in Constitutional 
Theory', and in it he explained how a judge must think about 
great Constitutional questions. Judge Bork wrote: 

'The institutions and traditions of the American 
republic, including the historic Constitution, are our 
best chance for happiness and safety. Yet it is 
precisely these institutions and traditions that are 
weakened and placed in jeopardy by the habit of 
' abstract philosophizing about the rights of man or the 
just society. Our institutions and traditions were 
built by and for real human beings. They incorporate 
and perpetuate compromises and inconsistencies. They 
slow change, tame it, deflect and modify principles as 
well as popular simplicities. In doing that, they 
provide safety and the mechanism for a morality of 


process. 



3278 


Those are not the words of a man with a social agenda 
to pursue. They are not the words of a man who wants to turn 
back the clock on civil rights or on privacy. They are the 
words of someone who has served with distinction as a 
professor at one of this country's great law schools, a 
practicing lawyer, the nation's chief appellate advocate, 
and judge of one of this country's most important courts. 

There is simply no one better qualified than Robert 
Bork to sit now as a Justice of the Supreme Court of the 
United States. 



3279 


The Chairman. Dean Rostow. 

Mr. Rostow. I have a prepared statement which I think you 
have. 

The Chairman. It will be placed in the record. 

Mr. Rostow. And I will cut it ruthlessly in order to stick within 
your 5 minutes. 

The Chairman. Thank you. 

TESTIMONY OF EUGENE ROSTOW 

Mr. Rostow. First, however, I do want to say how glad I am to 
see you again in this posture which is so familiar to both of us, and 
I’m grateful for an opportunity to testify in these hearings which 
are of great importance. 

But I should make it clear that I am neither a detached nor an 
impartial witness. I proposed Judge Bork for the Yale law faculty, 
and supported him in that post with great enthusiasm, and we’ve 
been colleagues and friends for something like 30 years. We don’t 
always agree, but we both have the temperament of lawyers who 
would find complete agreement on these difficult and contentious 
issues, even among friends, not only inconceivable but boring. 

Now, I made a point which Dean Holland made also, and I 
simply want to emphasize it. I’m not one of those who think that 
the Senate should be a rubber stamp for any Presidential nominee 
if satisfied that he or she is professionally qualified and a person of 
good moral character. 

I fully share the view that the Senate should take the nominee’s 
judicial philosophy into account, but there is a risk and a limit to 
that. The Senate must not—should not, at any rate try to usurp 
the President’s power of appointment. That is a point I think all of 
you should keep in mind in reaching your ultimate judgment on 
this matter. 

In my view, your hearings have not raised a serious issue about 
Judge Bork’s rectitude or his intellectual qualifications for the 
post. It seems to me that the sole question before you is whether 
his judicial philosophy so offends the Senate as to justify its refusal 
of consent. 

You will note, I did not say the issue is whether you agree with 
his judicial philosophy and record, or find it congenial, or even 
comfortable. The question, as I see it, is quite different. 

Many of you, I know, have concluded, as I have, that Judge Bork 
should be confirmed on the merits. Some are opposed or doubtful. 
To you, the doubtful ones, or the opposed ones, I say, particularly, 
the constitutional issue is whether you can honorably conclude 
that Judge Bork’s jurisprudence is so outrageous as to fall outside 
the zone of the President’s constitutional discretion in making 
nominations. 

In making that decision, I appeal to you to recall that some of 
the most influential and useful judges in the history of the Court 
were not full members of what has been called here the main¬ 
stream of constitutional opinion, but dissenters; often lonely voices 
in the wilderness whose views prevailed in the long run. Holmes, 
Brandeis and the elder Harlan all belong to this precious and re¬ 
markable group. 


3280 


Now, fond as I am of Bob Bork, and much as I admire him, I do 
not agree with him on some important issues. But I cannot see 
much doubt about the answer to the question before you as I have 
phrased it. Judge Bork is not a beady-eyed zealot, or a crank, in 
any conceivable sense of those terms, nor has he practiced politics 
from the bench. 

In my prolonged experience with him, he is exactly what he so 
clearly appeared to be at your hearings: an honest and serious in¬ 
tellectual whose professional life has been a prolonged and continu¬ 
ing struggle to adjust the judicial philosophy he was taught years 
ago to tne realities of law as a living growth. I need hardly add 
that he did not acquire his earlier judicial philosophy as a student 
at the Yale Law School. 

The judicial philosophy with which Judge Bork started his career 
is a perfectly respectable commonplace in the legal literature, the 
proposition, namely, that judges should find the law, not make it; 
but adhere strictly to the original intent of the lawmakers, and 
leave to the legislatures and the people the task of changing the 
law. 

This thesis is recited quite as piously by liberals as by conserv¬ 
atives, whatever those terms may mean in their application to the 
law. 

In the course of his strenuous pilgrimage in the law. Judge Bork 
discovered that this view is entirely inadequate as a guide to the 
process of law in the life of society. 

Most of Judge Bork’s testimony in these hearings is a coura¬ 
geously frank account of the evolution of his legal philosophy in re¬ 
sponse to his experience. In his remarkable opening statement 
before this committee, Judge Bork quite properly distinguished be¬ 
tween a judge’s personal values which he should rigorously exclude 
from consideration as best he can and those of the law to which he 
should try with all his might to be faithful. 

The greatest sentence ever written by John Marshall, in my 
view, is this one: “We should never forget that it is a Constitution 
we are expounding.” By that he meant three things, I believe. 

First, the Constitution is and should be a brief general document, 
not a prolix code. The Constitution should be a document which 
every citizen can understand as a statement of the principles and 
values intended to guide the evolution of the government and the 
society for ages to come. Thus, it leaves detail to be settled by 
future practice, by legislation, and by adjudication. 

Second, the Constitution should develop, as every law develops, 
in response to changes in circumstance and, above all, the changes 
in the moral code of the society, the spirit of its law, its aspiration 
for the future. 

And third, the Constitution, however adaptable, should have 
enormous continuity. As Judge Bork said here, the judge’s task in 
constitutional cases where the words in the Constitution are rarely 
precise is normally to find the principle or value that was intended 
to be protected and to see to it that it is protected. 

The judicial duty is to ensure that the powers and freedom the 
framers specified are made effective in today’s circumstances. 

The judge’s duty under our Constitution is a complex task of 
great difficulty and overwhelming importance. It requires disci- 



3281 


pline and restraint on the part of the judge as well as professional 
skill, respect for the law, and ultimately intuition into the moral 
evolution of the country. 

The original intent of the lawmakers, especially in the constitu¬ 
tional field, is either unknowable or hopelessly obscure. And in any 
event, it is only one of the factors which judges should take into 
account in deciding cases. 

Judges can’t help making some law as they interpret the Consti¬ 
tution. Holmes once said they make law interstitially; that is, they 
fill in gaps left by the original lawmakers. Whatever metaphor one 
uses to describe the judge’s role in lawmaking, one must acknowl¬ 
edge it. 

Judges should exercise their authority with great care. They 
should not confuse the judicial role in making law with that of the 
legislatures or the people, but it is simplistic to suppose that it can 
be denied. 

Not many nominees for appointment to the Supreme Court could 
have explained the judicial process as well and as honestly as 
Judge Bork has done in these hearings, with as much sophistica¬ 
tion, as much learning, and as much passion for the law. 

These hearings have been a remarkable event in other ways as 
well. No one could have heard or read the testimony of some of the 
witnesses—Barbara Jordan, for example, or William Coleman— 
without being moved and troubled. They are concerned about the 
possibility that the immense progress in our constitutional law of 
personal liberty accomplished by the leadership of the Supreme 
Court since the time of Chief Justice Hughes would be placed in 
jeopardy by the appointment of Judge Bork. Such a possibility 
would indeed be a matter for universal alarm. But their fear is 
groundless. 

Similar fears were widely held about the revolutionary changes 
in constitutional law which were expected during Chief Justice 
Burger’s term of office. That revolution did not take place then, 
and it will not take place now. 

The development of law has immense momentum. It grows ac¬ 
cording to its own rules, case by case, generation after generation. 
It will prevail once again. 

The libertarian tradition of American society reinforced by its 
law does not belong to either political party or to any one intellec¬ 
tual or ideological sect. It is a national creation and a national pos¬ 
session made by thousands of men and women over the years, Re¬ 
publicans, Democrats, Federalists and Whigs alike; liberals, con¬ 
servatives, and radicals; judges, citizens, writers, political leaders. 

As these hearings have demonstrated, that achievement, the 
achievement of this long line of creators, has the strong support of 
the American people as a whole. There is no danger that this 
mighty edifice will fall, and I can assure you on the basis of many 
years of experience that Robert Bork belongs firmly in the camp of 
those who believe in liberty protected by law. 

Thank you, Mr. Chairman. 

[Statement of Mr. Rostow follows:] 





3282 


Committee on the Judiciary 
United States Senate 
September 29, 1987 
Opening Statement of 
Eugene V. Rostow* 

! am grateful for the opportunity to testify in these important hearings. 

I should make it clear* however, that I am neither a detached nor an impartial 
witness. Judge Bork was invited to join the Yale Law Faculty at my suggestion, 
and with my enthusiastic support. We have been colleagues and friends for some 
thirty years. During that period we have shared several thousand conversations, 
parties, meals, faculty meetings, and forays into public affairs. All these 
associations have had the tone of ease, confidence, and candor that thrives only in 
a climate of mutual trust and mutual respect. We have not always agreed. But we 
both have the temperament of lawyers who would find complete agreement on 
difficult and contentious issues, even among friends, not only inconceivable but 
hopelessly boring. 

1 wrote a letter in Judge Bork’s behalf. It appeared in The New York Times 
on August 21, 1987. Unfortunately, 1 was not available just before the Times 
printed it. The Times made a few minor editorial excisions in the interest of 
space. 1 should appreciate it, therefore, if you allowed me to append the original 
form of the letter to this statement for the record, along with a copy of the 
published version. 

In my letter to the Times , I suggested that the Senate should respect the 
Constitutional distinction between the President’s function in nominating justices 
and the Senate’s function in consenting to their appointment. I am not one of those 
who believe that the Senate should approve any Presidential nominee if it is 
satisfied that the he or she is professionally qualified and a person of good moral 
character. Not at all. I fully share the view that the Senate should take the 
nominee’s judicial philosophy into account. Sometimes that consideration produces 
sensible results—the case of Judge Carswell comes to mind—and sometimes 
unfairness, as in the rejection of Judge Parker and Judge Haynsworth. What I do 

♦Sterling Professor of Law and Public Affairs Emeritus, and Senior Research 
Scholar, Yale Law School, Dean of the Yale Law School, 1955-65, and Distinguished 
Visiting Research Professor of Law and Diplomacy, National Defense University, 
198*--. 



3283 


believe, however, and believe very strongly, is that the Senate should not try to 
usurp the President’s power of appoint merit 1 nope we should all agree, for 
example, that it would be wrong -wrong Constitutionally -for a Senate controlled 
by its Republican members to tell a Democratic President that it would advise and 
consent only to the appointment of Republican justices, or to name one or perhaps 
two people it would accept, and refuse to consider any other nominees. 

On this point I recall to you the dilemma Congress faced v-hen 
Vice President Agnewr resigned. For the first t'me. Congress had the responsibility 
under the XXVlh Amendment to fill a vacancy in the office of Vice-President. 

The Democratic Party controlled both Houses of Congress. The press reported at 
the time that the Speaker of the House, T>p O’Neill, told a representative of the 
President that tne President had the power of appointment and that Congress 
expected a Republican nominee as a matter of course. The Democratic Party had 
no intention of taking advantage of emeu instances to seize the office of 
Vice-President. 

S do not mean to imply that the precedent is on all fours. Appointment to a 
political office or to the Cabinet is not the same as the appointment of judges. But 
the cases are not altogether different, either. Political considerations were surely 
more pertinent in the selection of Geraid Ford as Vice-President than they should 
be in the confirmation of Robert Bork as Associate Justice of the Supreme Court. 
The Constitutional pnnc’ple in each case is the same. 

The success of the Supreme Court since 1789 has depended in considerable 
part not only on the example of its greatest members but on the alternating 
impulses of the American political process. The ebb and flow of politics have 
brought judges of different outlook to the Court as Presidents and Congress have 
changed. That fact has helped to keep the federal courts and the Supreme Court in 
particular close to the changing moral code of the country. 

I am aware that the Senate has not always adhered to Speaker O’Neill’s 
salutary rule. But l submit that it is and should be the Constitutional norm guiding 
your decision in consenting or not consenting to a Presidential nomination to the 
Supreme Court. 


88-374 0 - 89-19 



3284 


In my view, your hearings have not raised a serious issue about Judge Bork’s 
rectitude or his intellectual qualifications for the post. The sole question before 
you is whether Bork’s judicial philosophy so offends the Senate as to justify its 
refusal of consent. You will note J did not say that the issue is whether you agree 
with his judicial philosophy and record, or find it congenial or even comfortable. 
The question, as 1 see it, is quite different. Many of you, I know, have concluded, 
as I have, that Judge Bork should be confirmed on the merits. Some are opposed or 
doubtful. To you, I say particularly, the Constitutional issue is whether you can 
honorably conclude that Judge Bork’s jurisprudence is so outrageous as to fall 
outside the zone of the President’s Constitutional discretion in making nominations. 
In making that decision, I appeal to you to recall that some of the most influential 
and useful judges in the history of the Court were not full members of what has 
been called here "the mainstream” of Constitutional opinion, but dissenters, often 
lonely voices in the wilderness, whose views prevailed in the long run. Holmes, 
Brandeis, and the elder Harlan all belonged to this precious and remarkable group. 

Fond as I am of Bob Bork, and much as I admire him, 1 do not agree with him 
on some important issues. However, I cannot see much doubt about the answer to 
the question before you as I have phrased it. Judge Bork is not a beadv-eyed zealot 
or a crank in any conceivable sense of those terms. Nor has he practised politics 
from the bench. In my prolonged experience with him, he is exactly what he so 
clearly appeared to be at your Hearings:—an honest and serious intellectual whose 
professional life has been a prolonged and continuing struggle to adjust the judicial 
philosophy he was taught years ago to the realities of law as a living growth. 

I need hardly add that he did not acquire his earlier judicial philosophy as a student 
at the Yale Law School, the home of legal realism and then of legal idealism. 

The judicial philosophy with which Judge Bork started his career is a perfectly 
respectable commonplace in the legal literature:—the proposition, namely, that 
judges should find the law, not make it, but adhere strictly to the original intent of 
the law makers, and leave to the legislatures and the people the task of changing 
the Jaw. The thesis is recited quite as piously by "liberals” as by "conservatives." 
What Judge Bork discovered in the course of his strenuous pilgrimage is that this 
view is entirely inadequate as a guide to the process of law in the life of society. 


Most of Judge Bork’s testimony in these hearings has been a courageously 
frank account of the evolution of his legal philosophy in response to his experience. 



3285 


In his remarkable opening statement before this Committee, Judge Bork quite 
properly distinguished between a judge's personal values, which he should rigorously 
exclude from consideration as best he can, and those of the law, to which he should 
try with all his might to be faithful. 

The greatest sentence ever written by John Marshall, in my view, is, "We 
should never forget that it is a constitution we are expounding." By that he meant 
three things, I believe. First, the Constitution is and should be a brief general 
document, not a "prolix code." A constitution should be a document which every 
citizen can understand as a statement of the principles and values intended to 
guide the evolution of the government and society for ages to come. Thus it leaves 
detail to be settled by future practice, legislation, and adjudication. Secondly, the 
Constitution should develop, as every law develops, in response to changes in 
circumstance and, above ail, to changes in the moral code of society, the spirit of its 
law, its aspiration for the future. Third, the Constitution, however adaptable, should 
have enormous continuity. As Judge Bork said, the judge's task in constitutional 
cases, where the words in the Constitution are rarely precise, is normally "to find the 
principle or value that was intended to be protected and to see to it that it is 
protected. [The judicial dutyl is to insure that the powers and freedoms the framers 
specified are made effective in today's circumstances.” 

The judge's duty under our Constitution is a complex task of great difficulty and 
overwhelming importance, it requires discipline and restraint on the part of the 
judge as well as professional skill, respect for the law, and ultimately intuition into 
the moral evolution of the country. The original intent of the law makers, especially 
in the Constitutional field, is either unknowable or hopelessly obscure, and in any 
event is only one of the factors which judges should take into account in deciding 
cases. Judges can't help making some Jaw as they interpret it. Holmes once said 
they make law "interstitially"--that is, they fill in gaps left by the original law 
makers. Whatever metaphor one uses to describe the judge's role in law making, one 
must acknowledge it. The judges should exercise their authority with great care. 

They should not confuse the judicial role in making law with that of the legislatures 
or the people. But it is simplistic to suppose that it can be denied. 

Not many nominees for appointment to the Supreme Court could have explained 
the judicial process as well and as honestly as Judge Bork has done in these Hearings, 
with as much sophistication, as much learning, and as much passion for the law. 



3286 


These Hearings have been a remarkable event in other ways as well. No one 
could have heard or read the testimony of some of the witnesses—Barbara Jordan, 
for example* or William Coleman—without being moved and troubled. They are 
concerned about the possibility that the immense progress in our Constitutional law 
of personal liberty accomplished by the leadership of the Supreme Court since the 
time of Chief Justice Hughes would be placed in jeopardy by the appointment of 
Judge Bork. Such a possibility would indeed be a matter for universal alarm. But 
their fear is groundless. Similar fears were widely held about revolutionary 
changes in Constitutional law which were expected during Chief Justice Burger’s 
term of office. That revolution did not take place then, and it will not take place 
now. The development of law has immense momentum. It grows according to its 
own rules, case by case, generation after generation. It will prevail once again. 

The libertarian tradition of American society, reinforced by its law, does not 
belong to either political party or to any one intellectual or ideological sect. 

It is a national possession, the creation of thousands of men and women over the 
years. Republicans, Democrats, Federalists, and Whigs alike; Liberals, 
Conservatives, and Radicals; judges, citizens, writers, political leaders. As these 
Hearings demonstrate, their achievement has the strong support of the American 
people as a whole. There is no danger that this mighty edifice will fall. And l can 
assure you, on the basis of many years of experience, that Robert Bork belongs 
firmly in the camp of those who believe in liberty protected by law. 



3287 



REPLY to 

ATTENTION Of 


DEPARTMENT OF DEFENSE 

NATIONAL DEfENSE UNIVERSITY 
WASHINGTON OC 3Q319-WOO 


August 3, 1987 


Institute for National Strategic Studies 


Letters to the Editor 
The New York Times 
229 W. <l3 r <l Street 
New York, N.Y. 10036 

To the Editor; 

Kenneth B. Noble’s report on the dismissal of Archibald Cox by Judge Bork 
in 1973 July 26 is marred by an inexplicable omission; it does not explain why 
Messrs. Richardson and Ruckelshaus felt disqualified to carry out President Nixon's 
order, and therefore resigned. Both men had testified to a Senate Committee 
that they would not dismiss Mr. Cox. Judge Bork faced no such moral obstacle. 

All three were rightly concerned about protecting the strength and integrity of the 
Department of Justice. They were equally clear that the President had the 
constitutional power to remove senior officials of the Executive Branch, a 
category which in their view included Mr. Cox, This opinion was not peculiar to 
Mr. Bickel, as Mr. Noble suggests. It is an inescapable aspect of the President's 
executive power, as has been recognized by an unbroken line of authority since 
James Madison, The principle survived Judge Gesell’s carefully qualified opinion 
on the subject. 

Mr. Noble writes as if Judge Bork's concern with the President’s legal authority 
to fire Mr. Cox betrays a ’’narrow" and "legalistic” approach to the problems he 
would face if appointed to the Supreme Court. The headline for his story starkly 
contrasts "law” and "principle”, as if law were not by definition the embodiment of 
the law-maker's principles. The Constitution entrusts Congress, the President, and 
the Courts with the discretion to decide certain questions with finality. The 
President's capacity to remove senior officials at his pleasure is one of those 
powers. 

The controversy over the confirmation of Judge Bork shows signs of straying 
from the principal issue presented by his nomination. No one questions 
Judge Bork’s outstanding personal and professional qualifications for the post. 

The debate is now focussed on whether the Senate finds his judicial philosophy 
congenial. The substance of a candidate's legal philosophy is of course germane to 
the issue of confirmation. The question before the Senate, however, should be 
more precisely defined. 

The balance of the Supreme Court's jurisprudence has been achieved and 
maintained for nearly two hundred years not only by the vision and example of its 
leading justices but by the natural rhythm of the political process. Presidents of 
different outlook nominate justices they think would share their point of view 
about the Court. Within broad limits, the Senate and the opposition party have 
recognized the propriety and value of this alternation of impulses in keeping the 
compass of the Court reasonably close to the moral code of the nation as a whole. 
By this standard, Judge Bork's nomination comes well within the zone of discretion 
the Senate has recognized as properly the President's. For the Senate 
to insist on more would be to assume the President's power to nominate as well its 
own power to confirm. 


Yours faithfully, 

Eugene V. Rostow 

Distinguished Visiting Research Professor 
of Law and Diplomacy 


$1 


Peru, Vermont 



3288 


The New Tfork Hines 


August 21, 1987 

Letters to the Editor 
Page A26 


Letter from Professor Eugene Rostov 



Iran and Saudis Differ on ’43 Incident in Mecca 


To the Editor: 

In “The Ancient Sunni-Shlltc Feud" 
(Op-Ed. Am 9), Martin Kramer 
presents one aide of the December I M3 
Incident In which an Iranian Shiite pil¬ 
grim was condemned by a Saudi Ara¬ 
bian magistrate and executed for defil¬ 
ing the area around the Kaaba, the ca- 
cred Moslem thru* In Mecca 

On the evidence of returning Iranian 
pilgrims, the Foreign Ministry fci Te¬ 
heran claimed b> mid-January JW4 
chat (he young man In Question had 
been overcome by the heat while per¬ 
forming (he ritual circuma mbutatkm 
of (he monument, and had vomited 
into his robe rather than risk messing 
the courtyard of the Grand Mosque. 
Sunnis who observed his condition 
later (hat day accused him of smug¬ 
gling excrement into the area to pol- 


Let Public In on Search 
For School Chancellor 

To (he Editor: 

A school chancellor with “public 
stature” and '^executive ability” 
(editorial, Aug 13) Is certainly 
needed for (he Me* York City school 
system As the Board of Education 
seeks a new chancellor. It should look 
for a person of vision, leadership ca¬ 
pacity and the sklD and self-assur¬ 
ance to attack management Issues 
forthrightly and foster local Initiative 
in revitalizing dist rkls and schools. 

The recruitment for fhis office 
must also respect the right of our 
mostly minority city residents who' 
use (he schools (o expea leadership 
that resonates to their experience 
and inspires their children with hopes 
for their own futures One way to as¬ 
sure (hat is by involving a diversely 
constituted group of city people in a 
genuinely open recruitment 

The Board of Education should de¬ 
part from its usual behind-the scenes 


kite IL The Saudi religious court acted 
on (he evidence «f these witnesses 
Wien (he Iranian Government for 
mally demanded reparation* for the 
hasty execution and assurances such 
episodes would not be repeated, Saudi 
officials replied (hoi (he condemned 
man was (he ringleader of a gang of 
Shiites Intern «m defiling (he shrine 
Teheran denied (his further accusa¬ 
tion and prevented Iranian nationals 
from participating In the pilgrimage 
tfi Mecca the following year, perhaps 
disingenuously blaming problems as¬ 
sociated with wartime transportation. 

Who Is to say at (his late date which 
of these versions Is nearer to the 
(ruth? FiedH Lawson 

Assistant Professor of Government 
Mills College 
Oakland, Cattf . Aug 5.1M7 


Living in New York 


To the Editor; 

I live in a women's residency tr 
Manhattan I am a mature woman, a 
skilled medical secretary and am 
locking for an apartment When apart¬ 
ments rent for 1800 a month — consid¬ 
ered tow tn Manhattan — you must 
have a verifiable Income of $40,000 a 
year. None of (he highly skilled secre¬ 
taries I work with earn more than 
$25,000 Bents in your ads are equally 
high for the other boroughs and areas 
around Kern York City, when you con 
sider (he cost of commuting and such 
hazards as crime and delays 
’ Many people I talk with who earn 
less than $30,000 have a strong desire 
to leave We feel our labor is needed, 
but our needs lor appropriate living 
conditions are not considered a priori¬ 
ty We constantly see new. luxury 
housing ereeled and absolutely noth¬ 
ing done for the need* of working peo 
pie Joan askew 

New York. Aug B.I9B? 


Ybthe Editor. 

Your report on the dismissal of Ar 
Chtbatd Cox by Judge Borfc In 117$ 
(July 3$) Is marrbd by on tnexpllca 
We omission: Kdoes not explain why 
Attorney General Elliot L Klchand 
oon and hi* deputy, William P Rue* 
tlthaot, fell disqualified to carry out 
President Nixon's order, arid (here 
fore resigned Both had testified to a 
Senate committee thsi they would not 
dismiss Mr. Cox Judge Bork faced no 
ouch moral obstacle All three were 
rightly concerned about protecting 
(he strength and Integrity of (he De 
part mem of Justice They were 
equally clear thst Ihe President had 
(he constitutional power It* remove 
senior officials of (he executive 
branch, a category which to (heir 
view included Mr Cox 

This opinion was wot peculiar to 
Prof Alexander M Bickel. os you 
suggest It Is an inescapable aspect of 
(he President's executive power, 
recognized by an unbroken Bne of au¬ 
thority since James Madison The 
principle survived Federst District 
Judge Gerhard A Gcsell s carefully 
qualified opinion on the subjecL 

You write as if Judge Sort's con 
cern with the President's legal au¬ 


thority to fire Mr Cox betrays a "nar¬ 
row” and "legalistic” approach to (he 
problems he would face If appointed 
to the Supreme Court. The Constitu¬ 
tion entrusts Congress, (he President 
and the courts to decide certain ques¬ 
tions with finality. The President's 
capacity to remove senior officials at 
his pleasure is one of those powers. 

No one questions Judge "Burk's out¬ 
standing personal and professional 
qualifications. The debate )f now fo¬ 
cused on whether Ihe Senate finds hi* 
Judicial philosophy congenial. The 
question before the Senate tbouM be 
more precisely defined. -« 

7he balance or Ihe Supreme Court's 
Jurisprudence has been achieved and 
maintained for nearly 200 years not 
only by the vision and example of its 
leading justices but also by the natural 
rhythm of the political process Presi¬ 
ded u of different outlook nominate 
Justices (hey think would share (heir 
point of view about Ihe «wit Within 
broad limits, the Senate and the <^»po- 
•itton party have recognized the 
propriety and value of this alternation 
of impulses in keeplryg the compass of 
the Court reasonably close lo the 
moral code of Ihe nation as a whole 
By this standard. Judge Bori s 
nominal ion comes well within the zone 
of discretion the Senate has recog¬ 
nized as properly the President's For 
the Senate to insist on more would be 
to assume the President's power I© 
nominate as well iU own power lo con 
f, rm Eugene v Rostov 

Pern.Vi,Aug 3.1987 
Thf writer rs ©.visiting rescorch pro¬ 
fessor of Jaw and dtplomocy at Ine 
Notional Dc/ense University's Jnsti- 
lute for National Strategic Studies 


approach to fitting the chancellorship 
and immediately involve the public In 
development of criteria and a na¬ 
tional search for candidate* Public 
dr liberal ion would bring more ca pa 



AXTHtl* PCM* il»LZb£RCER.CAfl<7*vn" 
SALttK MATTSON 

DAViri L GORHAM VtctPrrtdrnt 

FCV.’AMIN HAVPEIMAV Vwf P/w*dr»t 




3289 


The Chairman. Thank you very much, Dean. 

Dean Sandalow. 

Mr. Sandalow. Mr. Chairman, if I may also begin by correcting 
the Chairman. I am in the happy state—it may be the happiest 
state known to man—of being a former dean. 

The Chairman. I just want you to know I have been presented 
this witness list by those who asked you to be here, and I was not 
one of those, although I am delighted you are here. And I apolo¬ 
gize. 

Mr. Sandalow. I have submitted a prepared statement which I 
assume will be introduced into the record. 

The Chairman. It will be, the entire statement. 

TESTIMONY OF TERRANCE SANDALOW 

Mr. Sandalow. Thank you. My prepared statement is directed to 
the two primary issues that have emerged in these hearings. I con¬ 
sider first Judge Bork’s qualifications for appointment, with par¬ 
ticular attention to somewhat inconsistent claims that he is, on the 
one hand, a conservative ideologue and, on the other, that the 
views expressed in his testimony have been acquired merely to 
obtain confirmation. I think it is demonstrable that both charges 
are false. The second part of my testimony is devoted to a consider¬ 
ation of Judge Bork’s constitutional philosophy. My purpose is to 
demonstrate both that Judge Bork is in the mainstream of contem¬ 
porary constitutional thought and that his appointment would be 
in the national interest. 

In the limited time that I am permitted to speak I can address 
only the first set of issues, but I would be pleased to respond to any 
questions about his judicial philosophy. 

Judge Bork’s qualifications for appointment to the Supreme 
Court—as measured by his professional achievements, by his intel¬ 
lectual background, and by his personal qualities—are as impres¬ 
sive as those of any person nominated during my professional life¬ 
time. 

I need not belabor the point because the strength of his qualifica¬ 
tions is conceded by those who oppose his appointment. They urge, 
rather, that the Senate should refuse to confirm him because he is, 
they claim, a conservative ideologue. They seek to create a picture 
of a man so imprisoned by a rigid set of ideas that he is unable to 
perceive the force of opposing ideas or to respond with appropriate 
openness either to changing social circumstances or to the unique¬ 
ness of individual cases. The seriousness of these charges is exceed¬ 
ed only by their absurdity. 

The outstanding reputation that Judge Bork enjoys could not 
have been achieved by someone who conforms to the caricature 
that these critics have sought to create. Intellectual rigidity is not 
highly prized by lawyers and legal scholars, and those who are 
guilty of it do not achieve the professional distinction that Judge 
Bork has earned during the past 35 years. It is quite simply incon¬ 
ceivable that the American Bar Association would twice have given 
its highest rating to a man as narrowly dogmatic as the one that 
Judge Bork’s critics have sought to depict. 



3290 


In many conversations with him over the course of a friendship 
lasting over 25 years, and through familiarity with his writings, I 
know Judge Bork to be a vigorous advocate. Vigorous advocacy 
should not, however, be confused with dogmatism and intellectual 
rigidity. In my experience. Judge Bork has been entirely open to 
ideas that differ from his own, indeed eager to elicit them as a way 
of testing his own ideas. 

Once again, it seems unnecessary to belabor the point. The 
record reveals a number of important instances in which over the 
years he has altered his views in response to the arguments of 
others or because of the lessons of experience. These changes, it 
needs to be emphasized are matters of public record and occurred 
many years in advance of the current hearings. 

The most important test of the critics’ claim that Judge Bork is 
merely an ideologue is whether it is supported by his record on the 
bench. After reading many of his opinions, I am confident that no 
fair-minded reader—and, I will add, no responsible one—could con¬ 
clude that the record supports such a claim, a judgment that is bol¬ 
stered by an even more comprehensive study of his opinions than I 
have undertaken. 

At the request of the American Bar Association, a group of my 
colleagues on the University of Michigan Law School faculty, men 
and women of varying political persuasions and judicial philoso¬ 
phies—some of whom, I may add, do not favor his appointment— 
studied all of Judge Bork’s opinions. Their conclusions, which I 
quote in brief, were that: 

“Judge Bork’s opinions are generally well reasoned, balanced in 
judgment, clearly written, and fair in treatment of the arguments 
of losing parties and dissenters. And while Judge Bork is widely re¬ 
garded as a political as well as a judicial conservative, several read¬ 
ers were impressed by his manifest openmindedness and his appar¬ 
ent readiness to make the law and not his personal philosophy his 
guide to the results.’’ 

In brief, far from supporting the charge that he is imprisoned by 
ideology, the record of Judge Bork’s academic and judicial career 
demonstrates an admirable receptivity to evidence of changing cir¬ 
cumstances and to ideas that differ from his own. 

As evidence of those qualities has accumulated in these hearings, 
the critics have shifted their ground, suggesting now that Judge 
Bork is unprincipled and merely experiencing what has been called 
a “confirmation conversion.’’ The new charge is as baseless as the 
original one. The assertion that Judge Bork has altered his views 
to gain confirmation appears to rest on his testimony concerning 
freedom of speech and sex discrimination. 

With respect to the former, the record is clear that the view he 
now takes of the first amendment was publicly stated years before 
the hearings. As far as I know. Judge Bork has not previously ar¬ 
ticulated in public the position on sex discrimination that he has 
developed in these hearings. That position is, however, readily in¬ 
ferable from his prior writing. 

Even a modest understanding of the state of the law when Judge 
Bork wrote his now famous 1971 article should enable a reader to 
understand that he thought the 14th amendment, properly read, 
prohibits unreasonable classifications. I do not mean to suggest 



3291 


that in 1971 Judge Bork thought classification on the basis of sex 
was unreasonable. At that time, it must be remembered—though it 
has not been brought out in the testimony before the committee— 
the Supreme Court had not yet decided a single case holding sex 
discrimination impermissible under the 14th amendment. Indeed, 
it had consistently rejected every such claim that had been made to 
it. 

But the principle on which Judge Bork relied in that article, pre¬ 
cisely the same principle—I emphasize, precisely the same princi¬ 
ple—that he articulated in his testimony before this committee, is 
one that would permit application of the clause to sex discrimina¬ 
tion as the position of women in American society changed. When 
those changes occurred, as Judge Bork testified, legal distinctions 
between men and women that might once have been regarded as 
justifiable became unreasonable. 

The Chairman. Dean, could you summarize, please? 

Mr. Sandalow. I am about to summarize right now. 

The record thus provides no more foundation for the claim that 
Judge Bork’s testimony is opportunistic than it does for the claim 
that he is a conservative ideologue. Both assertions are, rather, evi¬ 
dence of the regrettable tendency in recent years for opponents of 
controversial nominees to seek ways of besmirching the latter’s 
character, rather than resting their case openly and honestly on 
disagreement with a nominee’s judicial philosophy. 

I just would like to say a word about that tendency in closing. In 
yesterday’s Washington Post an aide of Senator Biden, discussing 
the latter’s recent difficulties, was quoted as saying: “We were 
watching the media create a man we didn’t know. And there was 
nothing we could do to change it.” Those words capture precisely 
the feeling of those of us who know Bob Bork. The distortions of 
his record in the media, in advertisements, and in these hearings 
has sought to create a public image of a man very different from 
the one we know and very different from the one that emerges 
from a fair-minded reading of his record. 

Distorted statements of a candidate’s record and baseless attacks 
on his or her integrity and character are distressing when they 
occur in the political arena. But when they occur there they are 
expected as part of the rough and tumble of democracy. They are 
far more troublesome when they intrude upon the selection of 
judges. 

The central justification for an independent judiciary is its capac¬ 
ity to operate at a remove from the passions of politics, its ability 
to take a longer view than is possible for those who are under pres¬ 
sure from politically powerful interest groups. 

One may reasonably doubt whether a judiciary selected in re¬ 
sponse to the passions and pressures with which we have become 
familiar during the past 20 years and which particularly have in¬ 
fected the debate over Judge Bork can continue to perform these 
functions. 

Thank you. 

The Chairman. Thank you very much. 

[The statement of Mr. Sandalow follows:] 



3292 


Statement of 
Terrance Sandalow 

Professor of Law, The University of Michigan 
on the 

Nomination of Judge Robert H, Bork as 
Associate Justice of the Supreme Court of the United States 

before the 

Committee on the Judiciary 
United States Senate 

September 29, 1987 


I am grateful to the Committee for permitting me to 
appear in support of the nomination of Judge Robert H. Bork to a 
seat on the Supreme Court. 

My testimony is directed to the two primary issues that 
have emerged in these hearings. I propose to consider first 
Judge Bork’s qualifications for appointment, with particular 
attention to the somewhat inconsistent claims that he is, on the 
one hand, a conservative ideologue whose mind is closed to new 
ideas and, on the other, that the views expressed in his testi¬ 
mony have been acquired merely to obtain confirmation. I think 
it is demonstrable that both charges are false. The second part 
of my testimony is devoted to a consideration of Judge Bork's 
constitutional philosophy. My purpose is to demonstrate both 
that Judge Bork is in the mainstream of contemporary 
constitutional thought and that his appointment would be in the 
national interest. 

Since I am not known to its members, a few preliminary 
words regarding my background may help the Committee to under¬ 
stand the perspective from which l speak. I have been a profes¬ 
sor of law at The University of Michigan since 1966 and served as 
dean of its Law School from 1978 to 1987. Throughout that 
period, constitutional law has been one of my scholarly spe¬ 
cialties. Prior to joining the Michigan law faculty, I served as 
a member of the board of the Minnesota Branch of the American 
Civil Liberties union and as a member of the Minneapolis Commis¬ 
sion on Human Relations. More recently, I co-authored the brief 




3293 


amicus curiae submitted by the Association of American Law 
Schools in the Bakke case, a brief that strongly urged the 
Supreme Court to sustain the validity of minority preferences in 
university admissions. In my only prior appearance before this 
Committee that might be considered relevant to the question now 
before it, I testified in opposition to a proposed constitutional 
amendment that would have authorized prayer in public schools. 

I have known Judge Bork professionally for more than a 
quarter century. During that time, I have read a great deal that 
he has written, attended numerous meetings in which he also par¬ 
ticipated, and discussed a wide range of legal issues with him. 

On the basis of this rather extensive knowledge of the man and 
his work, I believe that he is exceptionally well qualified to 
sit on the Supreme Court. Judge Bork is a man of great intelli¬ 
gence, unusually wide learning, and complete integrity. As his 
scholarly work and his judicial opinions reveal, he is a highly 
skilled legal craftsman who has thought deeply about many of the 
issues that regularly arise in the Court. The professional qual¬ 
ifications, intellectual background, and personal qualities that 
he would bring to the Court are as impressive as those of any 
person nominated to the Court during my professional lifetime. 

The strength of Judge Bork's qualifications and his 
stature as a legal scholar and a judge are recognized by his 
critics as well as his admirers. Some of his critics have urged 
that the Senate should nevertheless refuse to confirm him because 
he is, they assert, a conservative ideologue. In so labeling 
him, they seek to create a picture of a man so imprisoned by a 
rigid set of ideas that he is unable to perceive the force of 
opposing ideas or to respond with appropriate openness either to 
changing social circumstances or to the uniqueness of individual 
cases. The seriousness of these charges is exceeded only by 
their absurdity. 

The outstanding reputation that Judge Bork enjoys could 
not have beer achieved by someone who conforms to the caricature 
that these critics have sought to create. Intellectual rigidity 
is not highly prized by lawyers and legal scholars, and those who 



3294 


are guilty of it do not achieve the distinction that Judge Bork 
has earned during his years as a member of one of the nation's 
most distinguished lav faculties and as a judge on one of our 
most prominent appellate courts. It is inconceivable that the 
American Bar Association's Standing Committee on the Federal 
Judiciary would have rated "exceptionally veil qualified" for 
appointment to the Court of Appeals and "veil qualified" for 
appointment to the Supreme Court — the highest possible rating 
in both instances — a man as narrowly dogmatic as the one that 
Judge Bork's critics have sought to depict. 

From many conversations with him and through 
familiarity with his writings, I know Judge Bork to be a vigorous 
advocate. Vigorous advocacy should not, however, be confused 
with dogmatism and intellectual rigidity. In my experience. 

Judge Bork has been entirely open to ideas that differ from his 
own, indeed, eager to elicit them as a way of continually testing 
his own ideas. Legal scholars display differing styles as they 
seek to advance discussion about legal issues. Some tend mainly 
to ask questions. Others forcefully advocate a position in the 
hope of eliciting from those who differ with them opposing argu¬ 
ments by which they may test their own ideas. Judge Bork plainly 
tends toward the latter style, but it is quite wrong to mistake 
his forceful advocacy of a position with dogmatic adherence to 
it. The point is admirably illustrated by his frequently cited 
1971 Indiana Law Journal article. At the conclusion of the 
article, following a forceful argument about the proper reach of 
the first amendment. Judge (then Professor) Bork wrote: 

"These remarks are intended to be tentative 

and exploratory. Yet at this moment I do not 

see how I can avoid the conclusions stated." 

47 Indiana Law Journal at 35. 

The critical words are "at this moment." In later years, in 
response to arguments made by other lawyers and legal scholars, 
he significantly modified the position he had taken in the lec¬ 
ture. The openness to opposing points of view that he displayed 
in this instance, and in others that might be cited, are hardly 
compatible with the notion that he is an unyielding adherent of a 



3295 


conservative orthodoxy. 


The most important test of the critics' claim that 
Judge Bork is merely an ideologue is whether it is supported by 
his record on the bench. After reading many of his opinions, I 
am confident that no fair-minded reader could conclude that the 
record supports that claim, a judgment that is bolstered by an 
even more comprehensive study of his opinions than I have under¬ 
taken. At the request of the ABA's Standing Committee on the 
Federal Judiciary, a group of my colleagues on The University of 
Michigan Law School faculty, men and women of varying political 
persuasions and judicial philosophies, studied all of Judge 
Bork’s opinions. Their conclusions, as stated by my successor, 
Dean Lee Bollinger, were that: 

"Judge Bork’s opinions are generally well 
reasoned, balanced in judgment, clearly writ¬ 
ten and fair in treatment of the arguments of 
losing parties and dissenters. These 
positive features are present in areas where 
Judge Bork may be assumed not to have great 
expertise as well as in those cases where he 
has. And, while Judge Bork is widely 
regarded as a political, as well as a 
judicial, conservative, several readers were 
impressed by his manifest open-mindedness and 
his apparent readiness to make the lav, and 
not his personal philosophy, his guide to 
results. " 


In brief, far from supporting the charge that he is imprisoned by 
ideology, the record of Judge Bork's academic and judicial career 
demonstrates an admirable receptivity to evidence of changing 
circumstances and to ideas that differ from his own. 

As evidence of those qualities has accumulated in these 
hearings, the critics have shifted their ground, suggesting now 
that he is "unprincipled” and merely experiencing a "confirmation 
conversion." The new charge is as baseless as the original one. 
Although I have not been able to watch all of Judge Bork’s testi¬ 
mony, I have watched a considerable part of it. So far as I can 
tell, the assertion that he has altered his views to gain confir¬ 
mation rests upon his testimony regarding his positions concern¬ 
ing freedom of speech and sex discrimination. With respect to 
the former, the record is clear that the view he now takes of the 
first amendment, a view significantly different view from that 



3296 


taken in his 1971 Indiana Lav Journal article, was publicly 
stated years before the hearings, at a time when he could not 
have anticipated personal gain from announcing a change in his 

position. 


As far as I know. Judge Bork has not previously articu¬ 
lated in public the position on sex discrimination that he has 
developed in these hearings. That position is, however, readily 
inferable from his prior writing. The claim that, prior to these 
hearings, he would not have applied the equal protection clause 
of the 14th amendment to governmental discrimination on the basis 
of sex stems from a statement in his Indiana Lav Journal article 
that "much more than (a prohibition of racial discrimination] 
cannot properly be read into the clause." 47 Ind. L.J. at 11. 
Even a modest understanding of the state of the law when Judge 
Bork wrote is sufficient to enable a reader to understand that 
the "something more" he thought could properly be read into the 
clause is a prohibition of "unreasonable classifications." That 
interpretation of the clause had been embedded in the law for the 
better part of a century and Judge Bork's allusion to it is 
unmis takeable. 

I do not mean to suggest that Judge Bork had sex dis¬ 
crimination in mind when he wrote these words. At that time, it 
must be remembered, the Supreme Court had not yet decided a sin¬ 
gle case holding sex discrimination impermissible under the 14th 
amendment; indeed, it had consistently rejected such claims. But 
the principle Judge Bork undoubtedly had in mind, precisely the 
same principle that he articulated in his testimony before the 
Committee, is one that would permit application of the clause to 
sex discrimination as the position of women in American society 
changed. When those changes occurred, as Judge Bork testified, 
legal distinctions between men and women that might once have 
been regarded as justifiable became unreasonable. The will¬ 
ingness of courts to recognize such changes, as he also testified 
and as he wrote in his concurring opinion in Oilman v. Evans . 750 
F.2d 970, 995-96 (1904), is essential if the values written into 
the Constitution are to remain a vital force in the governance of 
the nation. 



3297 


The record thus provides no more foundation for the 
claim that Judge Berk's testimony is opportunistic than it does 
for the contention that he is a conservative ideologue. Both 
assertions are, rather, evidence of the regrettable tendency in 
recent years for opponents of controversial nominees to seek ways 
of besmirching the latter's character rather than resting their 
case, openly and honestly, on disagrement with a nominee's 
judicial philosophy. I shall return to that tendency later in my 
testimony, but I want to consider first the controversy sur¬ 
rounding Judge Bork's judicial philosophy, for it is that philos¬ 
ophy, not his intellectual characteristics or his integrity, 
which is truly at the heart of the controversy that his nomina¬ 
tion has spawned. 

For the past twenty-five years, the most significant 
division among students of constitutional law has been between 
those who would have courts employ the Constitution as an instru¬ 
ment of social change and those who believe that under the Con¬ 
stitution the task of adapting law to social change belongs to 
the political branches of government. Judge Bork has for some 
years been a leading exponent of the latter position. Those who 
oppose his appointment hold the former view: Impatient with the 
processes of democratic government, and in the grip of a vision 
of what America should become, they have turned to the courts to 
achieve goals they are unable to gain from the Legislature. The 
consequence has been a prolonged controversy, now extending over 
a quarter-century, concerning the appropriate role of courts in 
the governance of the nation, a controversy that has become 
increasingly intense over time. 

The past twenty-five years is not, of course, the first 
time in our history that the proper role of the courts has been a 
subject of intense controversy. During the first four decades of 
this century, "conservatives" typically applauded, while 
"liberals" generally denounced as usurpations of legislative 
authority, decisions by the Supreme Court and lower federal 
courts that declared unconstitutional a great deal of economic 
legislation aimed at moderating the harshness of an unregulated 



3298 


capitalist system* The Supreme Court's persistence in thwarting 
economic reform, despite the absence of a solid constitutional 
foundation for doing so, brought the nation to the brink of a 
constitutional crisis that was averted only when the Court 
receded from the doctrines limiting legislative power. President 
Roosevelt's appointment of justices more sensitive to the claims 
of democratic government than their predecessors had been finally 
brought this chapter of the Court’s history to a close. 

The decisions of the Warren Court, and more recently of 
the Burger Court, have again put the Supreme Court at the center 
of national controversy. Though there are important similarities 
with the controversy surrounding the pre-1940 Court — in both 
periods, for example, the Court rested many of its most contro¬ 
versial decisions on the vague formulations of the equal protec¬ 
tion and due process clauses -- there are also important differ¬ 
ences. The old Court sought to thwart social and economic 
reform. The controversial decisions of the Warren and Burger 
years sought, rather, to promote social and political change. In 
general, the changes that have been decreed are opposed by ’’con¬ 
servatives" and favored by "liberals." Not coincidentally, 
"liberals" and "conservatives" have completely reversed their 
attitudes toward the Court. Liberals now hail the Court's deci¬ 
sions and, more generally, favor an "activist" judicial stance, 
while conservatives, who generally decry the decisions, call for 
the exercise of judicial restraint. 

Public discussion of the Supreme Court’s decisions and 
its role is driven primarily by agreement or disagreement with 
the results it reaches. It proceeds, in other words, as thougtf a 
judicial decision is no different from a statute. Layman typi¬ 
cally judge a constitutional decision to be right or wrong 
depending on whether they would favor or oppose legislation 
embodying the same result as the decision. Too many lawyers and 
(I especially regret to say) legal scholars respond similarly. 
Thus, opponents of capital punishment applaud, and proponents 
decry, every constitutional decision that limits the availability 
of that penalty. With respect to abortion, similarly, "pro- 



3299 


choice* 1 advocates laud, and "pro-life" advocates condemn, every 
decision that limits state pover to control abortions. For those 
who think of constitutional lav and the Supreme Court's role in 
this way, the question whether to favor or oppose a particular 
nomination to the Supreme Court depends only upon a judgment 
about whether the nominee will reach congenial results on issues 
they regard as salient. 

More thoughtful students of American government appre¬ 
ciate the inadequacy of this all-too-common view. The Supreme 
Court does not sit as the "upper chamber" of a tricameral 
legislature — an American House of Lords, so to speak. The Con¬ 
stitution confers "the legislative power" on the Congress, and 
though it provides for presidential participation in the exercise 
of that pover, it makes no provisions for participation by the 
courts. Indeed, a proposal to give the Supreme Court a role in 
framing legislation was specifically rejected by the Constitu¬ 
tional Convention. It follows that constitutional decisions can¬ 
not legitimately be made by the courts, or judged by the citi¬ 
zenry, merely by determining whether one or another result would 
have been congenial if enacted by a legislature. 

As a constitutional scholar. Judge Bork’s writing has 
been directed almost entirely toward the problem that most stu¬ 
dents of the subject have thus come to regard as the central 
question of constitutional law, determining when courts are jus¬ 
tified in invoking the Constitution to invalidate decisions by 
politically accountable branches of government. His view that 
courts may legitimately invalidate legislation only when justifi¬ 
cation for doing so can be found in the language and structure of 
the Constitution and the intentions of its framers is to be 
understood in light of the controversy I have briefly recounted 
over the appropriate role of the judiciary in our national life. 
It is not, as some have asserted, an expression of political and 
economic conservatism, but a means by which to implement his 
belief that in a democracy public policy is properly made by pol¬ 
itically responsible officials unless the policy they set vio¬ 
lates our constitutional traditions. His record in this respect 



3300 


is too clear to permit any misunderstanding. Thus, though Judge 
Bork was, throughout his academic career, a vigorous proponent of 
a free market economy, he has forcefully rejected the argument of 
some conservative theorists that the Supreme Court should return 
to the doctrines of an earlier time and constitutionalize 
laissez - faire economic theory. See Bork, The Constitution, Orig¬ 
inal Intent, and Economic Rights, 23 San Diego L. Rev. 823 
(1986). His rejection of that argument rested on precisely the 
same ground as his rejection of the argument recently made by 
some academic theorists on the opposite end of the political 
spectrum, that the Court should read into the Constitution a 
judicially enforceable right to welfare. See Bork, The Impossi¬ 
bility of Finding Welfare Rights in the Constitution, 1979 
Washington University L. Q. 695. In both instances. Judge Bork 
insisted, courts must leave the decisions where the Constitution 
has left them, with Congress and the state legislatures. 

In taking the position that public policy is properly 
made by politically responsible officials unless they violate 
constitutional values, Bork joins justices, both Liberal and con¬ 
servative, who are among the most distinguished figures in the 
Court’s history, including Justice Holmes, Frankfurter, Black, 
Jackson, and the second Harlan. To be sure, no one of these jus¬ 
tices approached the task of constitutional interpretation in 
precisely the way that Judge Bork does. They wrote at a differ¬ 
ent time and faced different issues and arguments than he has had 
to confront. It is, nevertheless, beyond question that, with 
respect to constitutional philosophy, they are his intellectual 
ancestors. Only those who fundamentally reject the tradition of 
judicial restraint with which these justices are associated can 
regard Judge Bork as "an extremist." 

It is here that we reach the heart of the issue that 
now confronts the Senate. The underlying claim of those who 
oppose Judge Bork's appointment, reluctant as they may be to own 
up to it, is that a leading exponent of the tradition of judicial 
restraint is, precisely because of his constitutional philosophy, 
unqualified to serve on the Supreme Court. Since that is not a 



3301 


very attractive position to maintain, some of the opponents have 
attempted to recast the argument, contending that the question is 
one of "balance." The responsibility of the Senate, they argue, 
is to assure that the Court is not dominated by the adherents of 
any one constitutional philosophy. The appointment of an addi¬ 
tional adherent of the tradition of judicial restraint, they 
warn, risks the overruling of many of the most important deci¬ 
sions of the past twenty-five years. 

The fear that Judge Boric's appointment would lead to 
"turning back the clock" is, in my judgment, not merely 
exaggerated, but belied by his record. As demonstrated most 
clearly by his record as a judge on the Court of Appeals, Judge 
Bork is, preeminently, a man of the law. 1 would not wish to 
predict how he would vote on any particular issue, but as a law¬ 
yer steeped in the traditions of our legal system, he knows that 
many constitutional decisions that he might not originally have 
joined are now too embedded in the law and in the understanding 
of the citizenry to be overruled. 

Judge Bork's appointment is likely to have greater 
impact on the Court's approach to new constitutional issues that 
it will face in the years ahead. The receptivity of the Supreme 
Court and lower federal courts to novel claims of constitutional 
right during the past twenty-five years has led many to suppose 
that there is a constitutional remedy for nearly every perceived 
social ill. As a consequence, it can be confidently predicted 
that in the years ahead the Court will be confronted with a vari¬ 
ety of novel constitutional claims seeking to withdraw areas of 
public policy from legislative control. I have already mentioned 
the argument that the courts should read a right to welfare bene¬ 
fits into the Constitution. One need only scan the pages of the 
nation's law reviews to find other novel claims of constitutional 
right that are likely to reach the Supreme Court in the years 
ahead. 


In assessing the need for the Senate to concern itself 


with the balance of constitutional philosophies among the jus- 



3302 


tices, it is important to recognize that during the past twenty- 
five years the Court has employed the Constitution as a vehicle 
for achieving social change to a greater extent than during any 
comparable period of our history. The Burger Court was in this 
respect hardly less active than the Warren Court. Judge Bork's 
confirmation threatens the balance within the Court only from the 
perspective of those who wish to perpetuate this judicial dis¬ 
placement of the legislative role as the Court confronts the next 
generation of constitutional claims. For those who believe that 
politically responsible agencies of government should bear ulti¬ 
mate responsibility for accommodating lav and chanqing ideas of 
public policy. Judge Boric’s appointment promises to restore the 
constitutionally established balance among the branches of gov¬ 
ernment . 


Even those who believe that the nation was generally 
well-served by the burst of judicial activism over the past 
twenty-five years, as in some measure I do, should understand 
that there are limits to the Court's capacity to play such a role 
over an extended period. If the Senate is to concern itself with 
"balance,' 1 to put the point somewhat differently, it should rec¬ 
ognize that the Court is a continuing institution. Judgments 
about balance must take account of its performance over time. 
Concern about prolonged judicial activism tends to focus upon the 
threat to democratic values when the courts persist in intruding 
too deeply into the domain of Congress and the state legisla¬ 
tures, but that is not the only danger. A prolonged period of 

judicial activism also threatens the insulation of judges from 
politics and, therefore, their ability to discharge the indis¬ 
pensable functions of an independent judiciary. If judges behave 
as legislators, it is inevitable that they will come to be 

regarded as political figures both by the public and by those who 

hold the power of appointment. It is distressingly evident that 
we have moved far along that path during the past twenty years. 

The commission of every Supreme Court Justice recites 
confidence in his or her "wisdom, uprightness, and learning." In 
recent years, however, the attention of the public and, even more 



3303 


regrettably, of officials vho hold the power of appointment, has 
been directed less to these qualifications than to the question 
whether a nominee would reach particular results on issues that 
* liberals" or "conservatives" have come to regard as a litmus 
test for judicial appointment. The intensity of emotion gener¬ 
ated by these issues has repeatedly led to distorted statements 
regarding the records of nominees and to baseless attacks upon 
their characters and their integrity. These are distressing 
characteristics of political life, but when they occur there they 
are expected as part of the rough-and-tumble of democracy. They 
are far more troublesome when they intrude upon the selection of 
judges. The central justification for an independent judiciary 
is its capacity to operate at a remove from the passions of poli¬ 
tics, its ability to take a longer view than is possible for 
those who are under pressure from politically powerful interest 
groups to achieve particular results. One may reasonably doubt 
whether a judiciary selected in response to the passions and 
pressures of the moment can continue to perform these functions. 

My purpose in calling attention to the quality of 
recent discussion of judicial appointments is not to criticize 
the participants, much less to suggest that the partisans on 
either side are primarily at fault. It is, rather to suggest 
that these characteristics of public debate over judicial selec¬ 
tion are very likely unavoidable if judges remain in the vanguard 
of social reform, imposing constitutional solutions for contro¬ 
versial political issues even when those solutions lack a founda¬ 
tion in our constitutional traditions. The remedy for the ill- 
tempered and overheated debates on judicial appointments that we 
have witnessed over the past twenty years is not futilely to call 
for more responsible debate, but appropriate restraint in the 
exercise of judicial power. 

Judge Bork’s appointment would bring to the Court 
another voice of restraint, a justice who appreciates that courts 
must defer to legislative judgment in the absence of a solid con¬ 
stitutional foundation for setting aside that judgment. In light 
of the concerns that have been expressed over his appointment the 



3304 


last clause of the previous sentence needs to be emphasized no 
less than the one that precedes it. Judge Boric's testimony in 
these hearings, and more significantly his record as a judge, 
make clear that his constitutional philosophy would lead him to 
enforce vigorously the limits that our constitutional tradition 
imposes on legislative power. But it would lead him also to 
defer to Congress and state legislatures when such limits cannot 
be found in our constitutional tradition. Those who oppose his 
appointment on the ground that it would "unbalance" the Court 
should tell us what balance they prefer. 



3305 


The Chairman. The Senator from South Carolina. 

Senator Thurmond. Thank you, Mr. Chairman. 

I want to thank you gentlemen for coming here and testifying. 
This is about the most impressive panel I have ever seen of law¬ 
yers. All able, all distinguished, all dedicated deans of law schools. 
And I am not going to take up your time and try to go into all 
these charges that have been made and issues that have been 
raised. We have spent a lot of time in asking over and over and 
over again every witness we have to go into every detail about this 
man. 

He testified. Judge Bork testified and that should be what 
counts. Not something what he said in a magazine article or wrote 
some 20 years ago. Hxs decisions on the circuit bench is what ought 
to count. His testimony here is what ought to count. Those are the 
two thingB that this committee ought to consider. 

But we have had witness after witness. But, anyway, he has writ¬ 
ten 150 decisions on the circuit bench. He has participated in over 
400 decisions. The Supreme Court hasn’t overruled a single one. 

Now we have had people here like Chief Justice Burger and we 
have had people like Lloyd Cutler, and yesterday we had a distin¬ 
guished former Attorney General, Grinin Bell, under President 
Carter testify from Georgia. We have had presidents of the Ameri¬ 
can Bar Association. 1 think they had a couple, but we had the rest 
of them, I believe, in favor of him . 

And Chief Justice Burger said, they are calling this man Bork an 
extremist. He says, if he is an extremist, I am an extremist. I don’t 
know what to make of this thing. 

Some of the media has made this man something he is not. In 
my opinion, this man is a sound judge. He is in the mainstream. I 
would call him maybe a moderate conservative. He is a little to the 
right, I think, of right in the middle. Well, what is wrong with 
that? President Reagan is. He appointed him. The people elected 
President Reagan. He had a right to appoint people. The people 
wanted to see this Supreme Court changed somewhat. I don’t know 
if he is going to change it all that much. Maybe he will change it a 
little bit. 

But at any rate, in my opinion he is a sound man. Now I am not 
going to take up your time and ask a lot of detailed questions. I am 
going to ask one question, and I wish all of you would answer it. 

Do you feel that Judge Bork is equipped by reason of integrity, 
judicial temperament and professional competence to be a member 
of the Supreme Court, and does he have the courage and the dedi¬ 
cation that man ought to have to be on that Court? That is all that 
counts, is your opinion. That is the final conclusion that we are 
going to have to reach. Let us not go into all this detail, contradic¬ 
tory and all those things. 

So I am going to start right over here, and if you will cedi your 
name and answer that one question. If you think he is qualified, 
you will say yes. If you don’t think he is, you will say no. Give your 
name and please answer. 

Mr. Frankino. Steve Frankino. My answer, Senator, is yes. 

Mr. Sandalow. Terrance Sandalow. An unqualified yes. 

Mr. Holland. Maury Holland. And yes to I believe both of your 
questions. Senator. 



3306 


Mr. Morgan. Thomas Morgan. And the answer is yes. 

Mr. Rostow. Eugene Rostow. Yes, indeed. 

Mr. Davenport. Ron Davenport. Yes. 

Mr. Casper. Gerhard Casper. Yes, Senator Thurmond. Now we 
are all in agreement, but obviously other people are not in agree¬ 
ment. And I think there is a very troublesome question here. Why 
is there this divergence? 

And I would like to point out that, contrary to the celebratory 
comments which we have heard over the last few weeks, these 
hearings have not been an unmitigated blessing. They have, 
indeed, created a fair number of problems. I could tick off one after 
another. 

First of all, this committee’s, the witnesses’ and many of the Sen¬ 
ators’ emphasis on results. Results of Supreme Court cases is the 
only thing that matters. The integrity of judicial reasoning is 
viewed as irrelevant to those results. That kind of result orienta¬ 
tion which summarizes complex cases in one or two words for the 
evening headlines on television I think has been disastrous. 

I think these hearings have had a chilling effect on the legal pro¬ 
fession. They have had a chilling effect probably on academics in 
terms of their writings. 

There will indeed be some controversy or articles not written by 
people who have any ambition. More importantly, perhaps—and I 
am much more troubled by that. I think these hearings have had a 
chilling effect on the judiciary, as it has been considered appropri¬ 
ate to go over every footnote of a judge. 

I think judges, writing now on the lower courts, will have to 
worry about what they write there. I think that will have a disas¬ 
trous effect, Senator Thurmond, on the development of law. 

Much of the controversy which takes place in footnotes, and in 
lower-court opinions, will disappear, or is very likely to disappear. 

I do think the very fact that this committee has been setting 
itself up as the judge of heresy, is not good for the country. What is 
the range of respectable opinion within which we may differ? 
Where does heresy begin? 

I think the country will have lower respect for the Supreme 
Court and that will have a disastrous effect on the Supreme Court. 

And last, but not least, I think these hearings have encouraged— 
and that is the reason why you see so much disagreement—a tend¬ 
ency to what I can only call McCarthyite distortions. 

Maybe if one charge does not stick, another will. I do not think 
these hearings are quite as great as is sometimes said these days. 

Senator Thurmond. Well, I want to thank you, gentlemen. I ap¬ 
preciate the courage you showed in coming here, and the dedica¬ 
tion and time that you have exhibited in testifying on this occa¬ 
sion, and I am sure the Committee is very grateful to you. 

Thank you very much. 

The Chairman. The Senator from New Hampshire. 

Senator Humphrey. Thank you, Mr. Chairman. Before I address 
a few questions to the panel, I want to correct a misstatement 
which I made earlier in connection with the quotes from Dean Ca¬ 
labrese of Yale Law School. 

I said that they were drawn from an article he published. Indeed, 
they were drawn from an article written by David Kaplan and 



3307 


John Riley in the National Law Journal in which article they 
quoted Judge Calabrese to the effect which I stated. 

Dean Casper reuses a very troubling observation. I have been 
troubled by the tenor of the accusations against the nominee, and 
have been troubled by what I see as a good deal of intellectual dis¬ 
honesty applied in pursuit of a political, or at least a philosophical 
agenda. 

I am hardly a trained observer of proceedings such as this, but I 
am very troubled by it. I wonder if we can ask for the perspective 
of other members of this panel. 

How do you think histor ians will judge these proceedings? What 
do you think historians will have to say about these proceedings? 
And I am not suggesting there has been any unfairness. That is not 
my point at all. Not in terms of the conduct, the chairing of these 
hearings, but this whole process involving, apparently for the first 
time, at least on this scale, a massive war between organized spe¬ 
cial interest groups. 

It is mindboggling, what is going on, and I worry very much 
about the outcome, not only with respect to this nomination, but 
the process, which has not been perfect in the past, to be sure, but 
which has been far more objective and stately than it would appear 
to be in this case. 

Dean Sandalow. 

Mr. Sandalow. If I may respond to that. I share concerns that 
you and Professor Casper have expressed. 

Senator Humphrey. Let me just interject this before you go on. 
The meaning of my question is this. My bottom-line question is 
this: what in the world is going on? How do you explain this? 

Mr. Sandalow. Well, let me begin by saying I share the concerns 
that you and Professor Casper have expressed. I deplore much of 
what has happened over the past weeks, but I think it is important 
to remember that what we have seen over the past several weeks 
merely continues a trend that has been developing over the past 20 
years. 

Why is it happening? I think it is happening because it is inevi¬ 
table that as the Court makes constitutional law that is further 
and further removed from moorings in either the language of the 
Constitution or the traditions of our people as they have evolved 
over the years it will increasingly come to be seen by all segments 
of the population—I do not mean this as a partisan comment—will 
come to be seen by all segments of the population as essentially a 
political actor whose role is no different from that of Members of 
Congress. 

And so the debate-- 

Senator Humphrey. Just another political prize to contest. 

Mr. Sandalow. Sure. And it will be thought that decisions of the 
Court should be debated in pretty much the same way as decisions 
of Congress are debated. That is, sometimes what Senators say is 
distorted. That is common, its politics. You folks are more familiar 
with that than I am. 

People generally do not worry about what the reasons of a Sena¬ 
tor are. They ask, is he coming out on the side that they think is 
right? 



3308 


That is one of the reasons, in my view—perhaps it is the most 
important reason—that it is so critical to add to the Court, at this 
time, another voice of moderate restraint. 

Bob Bork deeply believes in the liberties that are written into 
the Constitution, and his record makes it clear, beyond any doubt, 
that he would enforce those vigorously. But he would do so with 
respect for our traditions as a people and with respect for the judg¬ 
ments of democratically elected representatives of the people, per¬ 
haps more respect than we have heard from some democratically 
elected representatives of the people. 

Senator Humphrey. Dr. Rostow, may I ask you that question, 
too. 

Mr. Rostow. Sure. 

Senator Humphrey. How do you explain this? 

Mr. Rostow. Well, I share the concerns that have been ex¬ 
pressed, and I think certain aspects of this hearing, on the part 
both of organized groups and the Senators asking questions, and so 
on, has come very close to the edge of propriety in questioning a 
Supreme Court nominee, and in dealing with the problem of the 
Senate’s role as compared to the President’s role. I tried to bring 
that out in my prepared statement. 

The alternating impulses of American political life are a very 
healthy thing in trying to keep the Court—with all the courts, but 
especially the Supreme Court, in closer touch with the moral 
change in our people. 

But I do not think it is quite as novel as you suggest, even with 
the intervention of television. If you look at some of the battles in 
the administrations of President Washington and President Adams, 
and President Jefferson, you see American politics in its riotous 
rambunctiousness going strong back then. 

Thomas Jefferson wanted to find some ground for impeaching 
John Marshall, for example. And the stuffing of the courts at the 
end of John Adams’ adminstration was not a glorious moment in 
American political history, except that it gave us John Marshall, 
and therefore gave us the Constitution. 

So I am not quite as alarmed as you. I think the political system 
created by the Constitution is extremely strong, as I indicated in 
my prepared remarks, and it will survive and go its own way under 
the guidance, and within the framework of the values of the Con¬ 
stitution. 

That does not mean we should not all practice self-restraint and 
discipline in the exercise of our respective functions, but it is not as 
novel as you suggest, and certainly, I think it can be purged, if we 
all decide to live up to our responsibilities. 

Senator Humphrey. Thank you. I wish I had more time. This 
would be an interesting subject for a seminar. 

The Chairman. Thank you. Senator Heflin. 

Senator Heflin. I do not believe I will ask any questions. 

The Chairman. Gentlemen, thank you very much. I just would 
like to conclude by indicating that we—it is a tough decision to 
make for distinguished deans, as yourselves, and 32 other deans 
who have written the exact opposite opinion. The dean of Harvard 
Law School, the present dean of Harvard Law School. 



3309 


The dean of Georgetown University. The dean of Tulane Univer¬ 
sity. The dean of the University of Iowa. The dean of New York 
University Law School. Thirty-two, who came to an exact opposite 
conclusion. I do not suspect. Dean Casper, you suggest they are 
McCarthyite in their objection. I assume you do not do that. 

So it is a tough decision. We will listen to all of you. 

Mr. Casper. May I respond to that, Mr. Chairman? 

The Chairman. Surely. 

Mr. Casper. Mr. Chairman, of course I do not suggest that. 

My point addressed some of the distinctions and distortions 
which have happened, in particular, the interest-group type of 
analyses which have been submitted on Judge Bork’s work. That is 
what concerns me. 

The Chairman. None of them have testified, though, that I am 
aware of. 

Mr. Casper. Well, but much of the material presented to this 
committee, has been circulated, and, indeed, distortions have ap¬ 
peared in the give and take of this committee, which have been 
quite aggravating, I have to say. 

And I might lake to add one word. You suggested earlier, that we 
have been brought here by the White House. I am here- 

The Chairman. I did not suggest that. I did not say that. 

Mr. Casper. Well, it was just the scheduling, Mr. Chairman. 

The Chairman. I did not say that. Let’s get straight what I said. 

Mr. Casper. Because I am here on my own. 

The Chairman. Let’s get straight what I said. 

Mr. Casper. All right. 

The Chairman. I was corrected twice on what schools you each 
came from, and I have a list presented to me by the minority coun¬ 
sel. The minority counsel listed what schools you came from. That 
is what I was referring to. 

Mr. Casper. I am extremely sorry that there are those mistakes. 

The Chairman. Thank you. 

Mr. Casper. I just would like to explain, for the record, that I am 
here on my own- 

The Chairman. I have no doubt about that. 

Mr. Casper. And not- 

The Chairman. I have no doubt about that. I did not impugn 
your motivation for coming here, and I do not think you should 
impugn other people’s motivations for suggesting that they are op¬ 
posed to the judge. Thank you. Next panel. 

Senator Specter. Mr. Chairman, I wonder if I might ask a ques¬ 
tion. 

The Chairman. Oh, sure. I did not see you come in. Please. 

Senator Specter. Thank you. 

I regret that I have not been able to be here earlier, but I had a 
longstanding commitment with a couple hundred Pennsylvanians 
who were in town this afternoon, and it was made long before the 
hearings were scheduled. So, I express my regret. I have heard that 
it is a very distinguished panel of deans and former deans. 

Some very good friends of mine are on this panel. My dean, Dean 
Rostow, from Yale Law School is here, and I have a question which 
I would like to ask. 



3310 


Judge Bork has written extensively in a way which is at variance 
with some of his testimony here today and I will only cite one issue 
because of the lateness of the hour, and that issue is on the clear- 
and-present-danger test of the first amendment. 

Now he wrote in 1971, that he disagreed with the clear-and- 
present-danger test, and then he gave a speech at the University of 
Michigan—the copy I got said either 1977 or 1978—restating his 
disagreement with the Holmes’ clear-and-present-danger test. 

And then he gave a speech in 1984 to the Judge Advocate Gener¬ 
als, again raising about the same issue, discussing some cases 
which he had had, and referring again to Brandenburg. 

in his testimony here, he said that he would accept the settled 
law of the Brandenburg case, but he immediately said that he dis¬ 
agreed with the philosophy of the Brandenburg case. 

I then said to him, well, then, you accept Brandenburg and Hess, 
and he said, no, I disagree with Hess, because he considered Hess to 
be a case involving obscenity. Although the Supreme Court in Hess 
said that Hess was a free speech case. 

And the question which troubles me, and that I have discussed 
before, but I would like your views on it, is what assurances are 
there, in a realistic sense, that a Supreme Court Justice, Judge 
Bork, if confirmed, who says he does not want to be disgraced by 
history, and has taken an oath of office, and says he will accept set¬ 
tled law, but disagrees with the principle, and than makes a dis¬ 
tinction between Brandenburg to Hess —what assurances do you see 
that Judge Bork could do that if confirmed? 

And this is only illustrative because there are other issues as 
well, but I will limit it to just that one issue. 

Mr. Sandalow. I will take a crack at it. I am not certain 
that- 

Senator Specter. Fine. 

Mr. Sandalow [continuing]. Anyone can provide you with the 
sort of assurances that I think you would like to have. 

I think one needs to begin with the recognition that in an area 
like the one that you are raising—the clear-and-present-danger 
test—the general language of opinions, as you know as a fine 
lawyer, does not control judges very much. 

And therefore, I think that more than layman like to believe the 
responses of judges are shaped by the facts of particular cases. It is 
very hard to say exactly how a judge will come out on a case the 
facts of which he just has not been confronted with yet. 

What I think that means is that Judge Bork would approach the 
case in the same way that any other judge who has a respect for 
precedent would confront it. 

He would look at the case, but he would have to somehow come 
to terms with his reaction to the facts of the case as well as the 
pull of prior doctrine. 

Senator Specter. But there is one additional- 

Mr. Sandalow. No promises. 

Senator Specter [continuing]. One additional ingredient for 
Judge Bork, and that is a stated philosophical disagreement, and a 
very strong one. Judge Bork does not deal in anything less than 
great strength. 



3311 


Mr. Sandalow. There is one additional point that might be 
made. I did not see this part of Judge Bork’s testimony, and I do 
not know how intensely he stated his position. 

But, you know, the original position he took on this, back in that 
now famous 1971 article, was closely related to, indeed derived 
from his view at that time—which he has since abandoned—that 
the only protected speech was political speech. 

Now as that view has changed, I would expect that there is a 
softening of his view on the advocacy of revolution also, but I- 

Senator Specter. Dean Sandalow, there has not been. He had 
changed his view on political speech. He had expanded it some 
time ago to include scientific and artistic speech, but there has 
been no softening, as I understand it, on the issue of the clear-and- 
present-danger test. 

Dean Rostow. 

Mr. Rostow. I will take a crack at it, although I do not want to 
recite on Brandenburg and Hess because I have not read them 
lately. I have been otherwise occupied. 

But from time to time, I have worked in the field, of the clear- 
and-present-danger test and the application of the first amend¬ 
ment, both in itself, and through the 14th amendment. I speak as 
one with great sympathy for the clear-and-present-danger test, and 
great admiration for the contribution it has made to the evolution 
of the law. But it is intangible and difficult to come by, and many 
judges, and many professors—many judges, in particular, have 
complained about it and struggled to reformulate it. 

It has not been as useful in the field of libel, for example, where 
first amendment considerations come in, but there, the court has 
had a tremendous doctrinal struggle to get the law straightened 
out. 

I think what you see here, not only in Judge Bork's opinions and 
outlook, but also in those of many other people who work actively 
to try to apply these principles to fact situations which are very 
different—is that some people draw the line differently between 
freedom and order, and it is a very good thing that they do. 

And that is the true distinction between liberals and conserv¬ 
atives, and it is not an objection to confirming a man, that he 
would draw the line between freedom and order somewhat differ¬ 
ently from the way I do, for example, or you do, or whoever. 

I think he does. I think that is one of the few issues in constitu¬ 
tional law in which it makes sense to talk about conservatism and 
liberalism. 

Liberals are more optimistic about human nature and think 
human beings require less restraint. But I do not think you have 
seen, in this debate, anything more than the perfectly normal tur¬ 
bulence of doctrinal evolution which you can duplicate in any field, 
any time—any field that is active, any time. 

Mr. Casper. May I respond to that? I have read your questioning 
of Judge Bork in the hearings with great care. First of all, I would 
like to say that I entirely agree with your statement of the Bran¬ 
denburg case as just being an expression of the clear and present 
danger test, which it clearly is, although not everybody in the first 
amendment community would like to see it quite that way. But I 



3312 


think you’re entirely right. It is just a tougher formulation of the 
clear and present danger test. 

But I think you should not only accept Judge Bork’s word that 
he will accept Brandenburg as law because he has said so, but I do 
also think that the difference between your view and Judge Bork’s 
view is less pronounced than I think has come out so far, because 
your disagreement does not really go to the imminence point—that 
is, to the point that the danger should be imminent as it's formu¬ 
lated in Brandenburg, but goes to the fact that Judge Bork, theo¬ 
retically, and thinking about these matters afresh, would add the 
gravity of the evil as an important consideration, a position which 
has been, of course, very well represented in American law by such 
judges as Learned Hand. 

But I do think the difference is not quite as dramatic as I think 
you have so far felt it is, between your view on the matter and 
Judge Bork’s view. 

Senator Specter. Thank you very much. My time is up, and we 
also have a vote on. Our schedules around here are very difficult, 
which I know you all understand. But I want to join my colleagues 
in thanking this very distinguished panel for coming, and I want to 
salute Dean Davenport from Duquesne Law School, ex-Duquesne 
Law School, and all of you gentlemen for coming here and sharing 
with us your ideas on this important subject. 

Thank you. 

The Chairman. Thank you very much. 

The next panel will be Thomas Kauper, James Halverson, 
Donald Baker, and Phil Areeda. We will adjourn for the 8 or 10 
minutes it takes to vote. If the panel would be ready to go when we 
get back, I would appreciate it. 

[The committee was in recess.] 

The Chairman. The hearing will come to order. 

Thank you very much for your patience. I apologize for having to 
leave and vote, and I also apologize for such a distinguished panel 
coming on at 6:30 in the evening. You’re all busy and important 
men, with a lot to do, and having you wait around for this long is 
much appreciated. 

If you would all stand to be sworn, I would appreciate that also. 
Do you swear the testimony you are about to give is the truth, the 
whole truth, and nothing but the truth, so help you God? 

Mr. Kauper. I do 

Mr. Baker. I do. 

Mr. Halverson. I do. 

Mr. Areeda. I do. 

The Chairman. Is there an order in which you would like to go? 

Mr. Areeda. Alphabetical. [Laughter.] 

The Chairman. All right. Fire away. 



3313 


TESTIMONY OF A PANEL CONSISTING OF PHILLIP AREEDA, 

THOMAS E. KAUPER, JAMES T. HALVERSON, AND DONALD I. 

BAKER 

Mr. Areeda. Senator, I am Phillip Areeda, Langdell Professor of 
Law at Harvard University, where I have taught for over 25 years 
there, specializing in antitrust law. I have written extensively in 
that field, including a book widely used for the teaching of the sub¬ 
ject, and also a treatise on antitrust law, of which eight volumes 
have been published so far—with a coauthor on some of them. 

I am not here to tell you or anybody else how to vote. My aca¬ 
demic expertness gives me no more qualification than any other 
citizen for that. Nor am I here to defend all of Bob Bork’s writings. 
I don’t agree with him on all issues, but then I don’t agree with his 
critics on all issues, either. 

I am struck by the fact that much of the criticism of Bob Bork 
focuses on, and finds particularly objectionable, certain passages in 
his writings rather than the whole. I am reminded of the Postmas¬ 
ter General, when I worked in Washington in the fifties, who 
would underline the purple passages in novels and send them over 
to President Eisenhower to show what a terrible state the country 
was in—emphasizing the purple passages and ignoring all the rest 
of the book. 

The additional problem is that some of the critics of Bob Bork’s 
writings seem to demand adherence to a particular set of views as 
a qualification for appointment to the Court. Those critics bless 
their own views as the mainstream and damn everyone else as out¬ 
side of it. 

Bob Bork is clearly within the mainstream of American antitrust 
law, and I would like to define that mainstream. It can fairly be 
defined as a belief that the primary purpose of our antitrust laws is 
to promote competition so as to realize its benefits—the benefits of 
better products produced in better ways, and sold to consumers at 
competitive prices, without monopoly profits or private price fixing 
by firms that ought to compete. Bob Bork is fully committed to 
that mainstream, as his writings amply demonstrate. 

Some of those who criticize Bork say that he has a narrow view 
that the antitrust laws protect only economic efficiency rather 
than some broader values. I would like to put those vague abstrac¬ 
tions on one side and bring the academic dispute down to Earth. 
The central question is whether the antitrust laws should protect 
inefficient producers at the expense of American consumers, and 
Bork’s writings give a negative answer to that question, as indeed 
they should. 

Among the criticisms, including the criticism in documents circu¬ 
lated by the committee, there is a tendency to fault Bork for criti¬ 
cizing the Supreme Court decision in one case or another, or criti¬ 
cizing the wisdom of a statute in one situation or another. But crit¬ 
icism is not only desirable and essential, it is often justified. 

For example, one of the cases that Bork is faulted for criticizing 
is the Brown Shoe merger decision of the Supreme Court. That was 
a merger of two firms accounting for about 4 percent of shoe pro¬ 
duction, and one of which accounted for about 2 percent of national 
shoe sales. The Court gave as one of the reasons for condemning 


3314 


the merger that the merged American companies would get shoes 
to the American people more cheaply. Well, I think Bob Bork was 
entirely right to criticize the Court for that, and I have not heard 
those who fault him for doing so explain why it is that American 
consumers should be forced by antitrust law to pay higher prices 
for shoes. 

Many of the older antitrust cases that Bork has criticized rested 
on an assumption that may once have been valid—namely, that 
progress in the economy was inevitable and that U.S. industry was 
far ahead of the rest of the world. Those assumptions are no longer 
valid. Efficiency has to be won, and great care is necessary to keep 
antitrust law and other regulations from unduly interfering with 
it. 

To stay well within my 5 minutes, let me conclude. First, Bob 
Bork is committed to the mainstream antitrust values of protecting 
consumers. Second, he is intelligent and energetic and brings a 
strong and penetrating mind to the analysis of antitrust problems. 
Third, he has the capacity, always required in the law, to penetrate 
beneath the assertions and doubletalk of lawyers in antitrust suits, 
to get down to the real issue of what harms or benefits consumers. 

I disagree with a number of his academic positions, but I have 
confidence in the give and take among the nine members of the 
Court where vigorous internal debate is our best assurance of 
sound decisions. 

Thank you. 

The Chairman. Thank you very much, Professor. 

Mr. Donald Baker is a partner in a prestigious Washington law 
firm and I believe a former Assistant Attorney General in the 
Antitrust Division. 

Mr. Baker. Thank you, Mr. Chairman. I am honored to be here 
with my distinguished colleagues. I am also a former professor, 
which I don’t know if it helps or hurts in this environment. 

The Chairman. It always helps. 

TESTIMONY OF DONALD I. BAKER 

Mr. Baker. In a sense, I am surprised to be here supporting 
Judge Bork’s nomination. I was not a fan of Professor Bork’s early 
antitrust writings, and I was disappointed when he was named So¬ 
licitor General in 1972. 

I have since changed my mind. Why did I do it? First, I was ex¬ 
posed firsthand to Robert Bork as Solicitor General. I found him an 
impressively thoughtful person. He brought originality and insight, 
sheer intellectual power, to difficult situations. Second, I became 
more impressed with the insight in many of his antitrust writings 
as I got to know them better as a Cornell professor and practicing 
lawyer. Thoughtfulness, candor and intellectual firepower are defi¬ 
nitely what I want in a Supreme Court Justice. That is why I’m 
here today. 

I believe today, as I did in 1972, in clear antitrust rules and effec¬ 
tive antitrust enforcement. I would not be testifying here today as 
an antitrust witness unless I felt that Judge Bork’s elevation to the 
Supreme Court would promote the cause of effective antitrust law. 



3315 


To state it that way is to vastly understate it. Robert Bork has 
been one of the keenest antitrust minds of our time. He would 
bring extra insight to the Supreme Court deliberations on antitrust 
questions. His insight would help on both the crucial cert determi¬ 
nations of which cases to take and on the clarity of particular deci¬ 
sions. He would not fail to see issues lurking beneath the surface 
nor, I suspect, be too modest to call them to the attention of his 
brethren. 

In my prepared statement, which I would like included in the 
record, I touch upon several areas of antitrust law in which I think 
he has been a particularly forceful, useful, and pro-antitrust 
person. 

The first one involves joint ventures, in which he has generally 
advocated using the fact-based rule of reason rather than per se 
prohibitions. He did this in “The Antitrust Paradox,” it was fol¬ 
lowed by the Supreme Court in the series of cases, and he himself 
followed it in an important 1986 decision called Rothery Moving & 
Storage against Allied Van Lines, which I think is my candidate 
for the best antitrust case of 1986. 

It is criticized by the committee staff work as a big business kind 
of case, which makes me want to say something that comes out of 
my own experience of counseling in this area, and particularly 
counseling joint ventures. 

A broad joint venture is something which is often of greater 
value to its small members than its large ones, because the larger 
member has a better chance of doing it on its own. At the same 
time, a broad joint venture, at least the kind of joint ventures I 
represent, are frequently subject to what I will call “antitrust bul¬ 
lying,” threats of antitrust litigation or antitrust litigation de¬ 
signed to prevent the venture from doing what the opponent wants. 

Note in the NCAA football case that it was not a bunch of small 
colleges that brought the antitrust case to block what they were 
doing; it was two of the largest football powers. That, Mr. Chair¬ 
man, is the kind of thing that is repeated in other areas. 

Bork’s contribution of clarity and flexibility, and some degree of 
comfort, of the antitrust rules in the joint venture area is really 
important to the smaller members of my clients as well as the 
large ones. 

The second area which I touch on in the statement is what in the 
trade is called “sham litigation,” or what Bork calls in Chapter 18, 
which is brilliant, “predation through governmental processes.” He 
deals here with something that is all too similar and lamentable 
here in Washington: the established competitor of a group desiring 
to prevent or forestall entry, rolls out opposition, with or without 
cause, to any new competitor, using courts and regulatory agencies. 

Bork says some intelligent things and applies some intelligent 
analysis and looks at it in a way that offers a wider use of the anti¬ 
trust laws. I quote some of his more thoughtful prose in my state¬ 
ment, where I will leave it. But it’s a very sharp mind and a very 
constructive one. 

The third area that I mention about Bork comes more out of his 
role as Solicitor General, indeed, at a time when both Professor 
Kauper and I were in the Antitrust Division. There he was very 
much a leader in rolling back what was known as the “state 


88-374 0 - 89-20 



3316 


action” exemption. This was an ill-defined exemption which al¬ 
lowed a lot of private cartel activity under the sort of gauzy cloak 
of the state. 

The chance for the Antitrust Division and the Solicitor General 
came in a case called Goldfarb against Virginia State Bar, which 
was, incidentally, brought by Ralph Nader’s litigation group. The 
Department of Justice supported Nader’s group in the Supreme 
Court and got it reversed. Bob Bork argued the case himself with 
great vigor. And in the next case that came up, which was called 
Cantor v. Detroit Edison, he also argued with great vigor, but I en¬ 
joyed it less because by this time I was out and counsel to the 
losing party, although I think he was probably right. 

Let me conclude with several quick, general thoughts. I thi nk 
Judge Bork has the reputation in some quarters of being anti-anti- 
trust, a reputation which he helped create with his sharply barbed 
phrases in “The Antitrust Paradox.” In that book he puts his 
finger clearly on the uneasy balance of values which mostly lies be¬ 
tween the surface of the antitrust laws, between what Justice 
Powell has called “competition based on efficiency,” and what Jus¬ 
tice Peckham many years ago called the protection of “smaller 
dealers and worthy men.” 

Professor Bork has come down squarely on the side of “competi¬ 
tive efficiency.” So has the modem Supreme Court. It is competi¬ 
tion, not competitors, said the Court—indeed, said Justice Mar¬ 
shall, a liberal member of the Court. 

Now, what I’m saying here is not completely new to me. In 1978 
I wrote a short review of “The Antitrust Paradox” in the New 
York Law Journal. I have managed to retrieve a copy from a 
microfilm library and attach it to my statement for the commit¬ 
tee’s use. I mention the microfilm library because that is why it’s 
such a crummy copy. 

Note my last paragraph, which begins “Probably the people who 
may most need Bork are the ones that are least likely to read 
him.” I hope that’s not true today. 

Of course, there is no antitrust seat on the Supreme Court, how¬ 
ever charming that might be to some of us. Robert Bork is not here 
before this committee just because he is a good antitrust lawyer. 
He is here because he is an extraordinarily good lawyer who just 
happens to have heavily used his analytical skills in the antitrust 
area. He is definitely in the now familiar “mainstream” of anti¬ 
trust, if that means his antitrust thinking—both as Professor and 
Judge—is widely used by antitrust practitioners, antitrust courts, 
and even antitrust professors. He is not in the mainstream if that 
means “average" or “economically larded dullness.” 

In sum, his antitrust work clearly supports the case for his con¬ 
firmation. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Donald I. Baker follows:] 



3317 


STATEMENT ON ANTITRUST ISSUES 


BY 


DONALD I. BAKER 

Washington, D.C. 


CONCERNING THE 
NOMINATION OF 

THE HONORABLE ROBERT H. BORK 


Before the 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 


September 29, 1987 



3318 


I am surprised to be here supporting Judge Bork's 

nomination. I was not a fan of Professor Bork's early 

r 

antitrust writings and X was disappointed when he was 
named Solicitor General in late 1972. 

I have since changed my mind. Why did I do it? 
First, I was exposed first hand to Robert Bork as Solicitor 
General. I found him an impressively thoughtful person; 
he brought originality and insight — sheer intellectual 
power — to difficult situations. Secondly, I became more 
impressed with the insight in many of his antitrust 
writings as I got to know them better as a Cornell 
professor and practicing lawyer. Thoughtfulness, candor 
and intellectual firepower are definitely what I want in a 
Supreme Court Justice. That is why I am here today. 

* * * 

I believe today, as I did in 1972, in clear 
antitrust rules and effective antitrust enforcement. I 
have freely criticized the Reagan Administration (and its 
predecessor) when I thought they were not meeting these 
goals (and have sometimes been invited up to Capitol Hill 
to air my dissents.*/ I would not be testifying here 


The last time I testified on Capitol Hill was on 
February 26, 1987, when I presented a critique of the 

Administration's proposed Antitrust Division budget before 
the House Judiciary Committee. The last time I was asked 
to testify before this Committee was in 1985, concerning 
my article criticizing the Departments of Transportation 
and Justice for their handling of the Norfolk-Southern- 
Conrail merger. “Sale of Conrail Is Latest Chapter In Sad 
History of Railroad Mergers", National Law Journal, April 
22, 1985. 



3319 


- 2 - 

today, as an antitrust witness, unless I felt that Judge 
Bork's elevation to the Supreme Court would promote the 
cause of effective antitrust law. 

To state it that way is vastly to understate 
it: Robert Bork has been one of the keenest antitrust 
minds of our time. He would bring extra insight to the 
Supreme Court deliberations on antitrust questions. His 


insight could help 

on 

both 

the crucial 

cert. 

petition 

selection 

process 

and 

on 

the clarity 

of particular 

decisions. 

He would 

not fail to see 

issues 

lurking 

beneath the 

surface 

nor, 

. I suspect, be too 

modest 

to call 

them to the 

attention 

of 

their 

brethen. 






* * 

* 




Let me try to be specific. I want to focus on a 
few particular areas. 

1. Joint Ventures . Professor Bork expressed 
serious concern from very early on about the application 
of per se rules to the activities of joint ventures. He 
saw a joint venture as potentially (but not always) 
creating a product, services, or facility which the members 
could not do individually. He saw joint ventures as 
potentially (but not always) subject to centrifugal forces 
and free riding. He also saw joint ventures as capable of 
potentially (but not always) of engaging in predatory 



3320 


- 3 - 

exclusion from joint facilities. This led him in The 
Antitrust Paradox to criticize the rote invocation of per 
se Sherman Act doctrine in such cases as Sealy , Topco , and 
Fashion Originators Guild . Rather he argued, especially 
in Chapter 13, that the antitrust court actually had to 
look at the facts and see what was going on in the 
particular case. 

The Supreme Court followed Bork's lead in its 
Broadcast Music decision in 1979, its NCAA decision in 
1984, and its Northwest Wholesalers decision in 1985 — 
citing The Antitrust Paradox in NCAA .*/ Each involved a 
joint venture. Each resulted in a rule of reason decision 
— two going for the joint venture, NCAA against it. 

Judge Bork meanwhile following his own teaching 
last year in Rothery Moving & Storage Co. v. Allied Van 
Lines -- my candidate for the best antitrust decision of 
1986, and certainly the most useful antitrust decision in 
the joint venture field. Judge Bork (writing for himself, 
Chief Judge Wald, and Judge Ruth Bader Ginsburg) treated 
the Allied system as a joint undertaking between Allied 
and its agents. (Plaintiffs' also treated it as a joint 


V National Collegiate Athletic Assn, v. Board of Regents 
o f the University of Oklahoma , T68 U.S. (Ts"! 101 (1984) . 




3321 


undertaking, but called it a per se "boycott*.) Judge 
Bork found that (1) "free riding" was a Significant 
problem; (2) the system rule designed to combat the problem 
was an ancillary restraint entitled to rule of reason 
treatment; and (3) it passed muster in part because of the 
Allied system's market share was only 6% nationally. 
Judge Bork's decision rested heavily on Broadcast Music , 

NCAA, and Northwest Wholesalers -- which seems fitting 
because those three decisions had been so clearly 

influenced by Professor Bork's analysis in The Antitrust 
Paradox . 

Let me make one point which is drawn from my 

extensive work for ]oint ventures, principally (but not 
exclusively) in the banking area. A broad joint venture 
is something which is often of greater value to small 

members than large ones, because the larger member has a 

better chance of achieving at least part of its goals on 
its own. At the same time, a broad joint venture is 

frequently subject to what I shall call "antitrust 

bullying" by a large member -- in other words antitrust 

litigation or more often litigation threats designed to 
prevent the joint venture from doing what the large member 
opposes. Note that it was not small colleges -- but two 
major football universities -- which brought the antitrust 
case against NCAA. Thus joint ventures (and their smaller 



3322 


- 5 - 


members in particular) have much to gain from the type of 
clarity Robert Bork has helped to bring to this area of 
law. It also brings me to my next subject. 

2. Sham Litigation . Chapter 18 of The 

Antitrust Paradox is simply brilliant. Entitled "Predation 
Through Governmental Processes," it deals with something 
which is all too familiar (and lamentable) here in Washing¬ 
ton. The established competitor or group desiring to 
thwart (or at least delay) new entry resorts to the 
regulatory process and the courts as a way of achieving 
this goal -- Professor Bork explains why such predatory 
tactics are so effective economically. He then builds on 
the Supreme Court's 1976 decision in California Motor 
Transport v. Trucking Unlimited to suggest a broader attack 
on these abuses. He writes (at pp. 355-356): 

Cases involving attempts to invoke 
governmental processes necessarily 
implicate profound values of a demo¬ 
cratic system of government.... There 
is the need, as Noerr fully recognized, 
that citizens have the widest latitude 
in bringing their views, information, 
and desires to the attention of their 
representatives.... But there is also 
the correlative need that government 
be able to protect the integrity of 
its processes, that it be able to 
punish those who would abuse them.... 

Because there is a degree of 
tension between these constitutional 
values, the cases involving attempts 



3323 


- 6 


to use governmental processes for*' 
private gain will lie along a spectrum 
from the completely punishable to the 
completely ;mmune. To lump all cases 
under either category would deny the 
needs of government and the values 
protected by our Constitution. A 
number of considerations seem proper 
in placing various situations on the 
spectrum and determining the liability 
or immunity of those who misuse govern¬ 
mental procedures. I can offer no 
single bright line that disposes easily 
of all cases, dropping them neatly into 
one category or the other. Reflection 
suggests that no such line exists. 

But the factors that do control are 
sufficient to offer the degree of 
certainty and predictability the field 
requires. 

This is very important. Note the thoughtful and balanced 
style. "Sham" litigation is not an issue on which Bork 
has apparently had a chance to write as a Judge. I hope 
he would have a chance as a Justice. 

3. "State Action" Exemption . As Solicitor 

General, Robert Bork was a real leader in the Justice 
Department effort to roll back the open-ended "state 
action" exemption which had originally been announced in 
Parker v. Brown thirty years earlier. This ill-defined 
exemption had allowed a great deal of private cartel 
activity to go on under what Justice Powell was later to 
label the "gauzy cloak” of state immunity. The chance for 
the Antitrust Division and the Solicitor General came in 
Goldfarb v. Virginia State Bar -- a landmark case, brought 



3324 


- 7 - 

by Ralph Nader's litigation group, challenging fee fixing 

by local Virginia lawyers. The United States as amicus 

weighed in on the plaintiff's side and secured a unanimous 
reversal of a Fourth Circuit holding of immunity. 

Solicitor General Bork argued the case himself, in his own 

vigorous style. He did the same thing less than two years 
later in Cantor v. Detroit Edison -- and won again, but 
only by a plurality. (By this time I was out of the 
government -- temporarily -- and was counsel for the 
defendant in the case. I know all too well how good the 
Solicitor General was!) 

4. Antitrust Exemptions Generally . The Supreme 
Court has been generally strong, but not always consistent, 
in maintaining the general position that exemptions from 
the antitrust laws are not to be lightly implied from the 
passage of other subsequent federal legislation. The 
required analysis in each case generally starts with some 
ambiguous legislative history, and then turns to a hard- 
boiled analysis of the operative needs of the other legis¬ 
lative scheme. As Solicitor General, Robert Bork worked 
hard to help the Antitrust Division avoid claims of implied 
exemption (even though we were not successful in all the 
cases). I would expect a Justice Bork to look skeptically 
on implied exemption claims by cartel managers and 
monopolists — and require careful and persuasive showing 



3325 


- 8 - 

of operative need before finding an implied exemption from 
otherwise ambiguous legislative history. In this respect, 
he would probably be more likely than Justice Powell was 
to find no exemption in a particular case.*/ 

* # # 

Let me conclude with a couple of general thoughts. 

Judge Bork has had a reputation in some quarters 
as being "anti-antitrust" -- a reputation which he has 
helped create with some sharply barbed phrases made in The 
Antitrust Paradox and elsewhere. In that book he puts his 
finger clearly on the uneasy balance of values which 
(mostly) lies beneath the surface of the antitrust laws — 
a balance between "competition based on efficiency" (as 
Justice Powell has labelled it) and the protection of 
"smaller dealers and worthy men" (to borrow Justice 
Peckham's phrase from an early case). Professor Bork has 
come down squarely on the side of "competitive 
efficiency". So has the modern Supreme Court. Thus, in 
Brunswick Corp. v. Pueblo Bowl-O-Mat , the unanimous court 
(with Justice Marshall writing) stressed a much-repeated 
message that it is " competition , not competitors which the 

Justice Powell's decision in United States v. National 
Assn, of Securities Dealers , 422 U.S. 694 (1975) has 
always been one of my leait favorite decisions. Solicitor 
General Bork autorized the government's appeal in that 
case, over the opposition of the SEC. 



3326 


- 9 - 

antitrust laws protect." Most of the leading coirttentators, 
join in this chorus, as you can infer from this panel here 
today. 

What I am saying here is not completely new with 
me. In 1978, I wrote a short review of The Antitrust 
Paradox for the New York Law Journal . I have managed to 
retrieve a copy from a microfilm library and I attach it 
for the Committee’s use. Note my last paragraph which 
begins: "Probably the people who may most need Bork are 

the ones least likely to read him." That may still be 
true today. 

Of course there is no "antitrust seat” on the 
Supreme Court (however charming that thought might seem to 
some of us). Robert Bork is not here before this Committee 
just because he is a good antitrust lawyer. He is here 
because he is an extraordinarily good lawyer who just 
happens to have heavily used his analytical skills in the 
antitrust area. He is definitely in the now-familiar 
"mainstream" of antitrust, if that means his antitrust 
thinking (both as Professor and Judge) is widely used by 
antitrust practitioners, antitrust courts, and even anti¬ 
trust professors. He is not in the mainstream if that 
means "average" or "economically-larded dullness”. 

In sum, his antitrust work clearly supports the 
case for Judge Bork’s confirmation. 



3327 



THB ANTITRUST PARADOX, 
at Robert H. Bork. fa .tic Bookt, 
He* York, N. r.. 1979, J61 page*. ttt 

B«v1e«e4 by 

Do Mid I. Baker 

Professor Robert Bork ha* long 
been known at a trenchant and ar¬ 
ticulate critic of modern antitrust 
law and Its enforcement Shivers ran 
through the staff of the Justice 
Departments Antitrust Division 
back in December, 1972. when it was 
rumored that he would be named As¬ 
sistant Attorney Genera! for An* 
titrust In the post-election purge at 
the Department of Justice, tin fact, 
he was named Solicitor General.) 

Bork livea up to his previews in 
The Anfifnurf Atmdoc — whloh <• 
sub-titled *‘A Policy at War with 
Itself." Today, he finds "antitrust is 
less a discipline than a bussing confu¬ 
sion of unrelated opinion" ip. 116) 
and "has so decayed that the policy is 
no longer intellectually respectable" 
i p. 4iai. Still elsewhere, he says. "It 
is both startling and discouraging to 
realise that, in view of what came 
later, the Addj/'.lon opinion of 1896 
may well have been the high-water 
mark of rational antitrust doctrine." 
ip. 30). 

WIN Upset Many 

This clear and forceful book will 
make government antitrust en- 
•-* ers uncomfortable — but the dis¬ 
comfort Bork causes will extend to 
judges, politicians and antitrust 
practitioners as well. Believing that 
intellectual discomfort is a personal 
good and a catalyst to public 
progress. 1 recommend Tht Antitnt\t 
P«r<irff,i to all whom Bork would 
make uncomfortable - e\en though! 
cissent from at least swine cf whet he 
says 

Bork s central thee- 4 js clear an 
titrust I aw is cor.trrncd u>:!^ with 
promoting coisun-':: welfare and 
therefore antitrust enforcement 
should be conf.rri 1-, »* -ppmg ■ 1» 
agreements among competitors to 
*. ntrol price or nutput <2 verj large 
mergers among direct competitors, 
and <3* *u-nc vert limited types of 
prtdaiory practice** For Bork. an 
titrust should m »c' he used for any 
Hrantfcsian purpose <>f protecting the 
opportunities for businesses because 
they arc •’am.ul. local” or 
otherwise wortn> mp-ipuij-.t e>os He 
regard* ntititruHl enforcement 
against customer supplier mergen 
and conglomerate mergers as ex pen- 


DcmH I. Raker, a fsrmrr 
chief sf the Antitrust Division. 
Department of Justice, ft of 
(NMi to lb* Washington, D.C.. 
hsw Orm if J—in. Day, Ra*«l* A 

r«g«r. 


sive nonsenss; antitrust enforcement 
•gainst manufacturer Imposed 
restrictions on dealers as wholly mis* 
guided; antitrust enforesmsat 
sgalnst tie-ins, requirements con¬ 
tracts and price discrimination* M • 
misguided attempt to provide special 
protection to the inefficient; and cur¬ 
rent antitrust enforcement against 
monopolise and '’shared 
monopolies" as attempts to punish 
successful firms for being successful. 

Bork’s economic thinking comes 
from the ‘'Chicago school" — which 
is not concerned about the oligopoly 
piobtems which worry today’s an¬ 
titrust enforcers and many non- 
Chicagoan economists. His political 
philosophy la conservative, which 
causes him to wont a narrower and 
less active law-making rote for the 
cotirfs than Congress would seem to 
have intended whan It enacted the 
very open*«nded antitrust statutes. 

To soma extant, Bork, is flaJttng at* 
ghosts of tfie past, albeit a post or 
only.a decade or so ago. Many of the 
Idea* UuOlm other similarly* ' 
minded thinkers have espoused have 
already had a substantial Influence 
on a generation of public prosecutors 
and the current majority on the 
Supreme Court. For example, the 
Antitrust Division takes economics 
very seriously. It now devotee the 
largest part of its enforcement 
resource* to price-fixing agreements 
among competitors t which Bork 
would say was good) and almost 
never brings a case against a tle-ln or 
manufacturer-dealer distribution 
restraints f which Bork would also 
Applaud). The Antitrust Division has 
been it least as critical as Bork'o 
Chapter 20 about the pernicious ef* 
fects on competition of the protec¬ 
tionist Robinsen-Patman Fries 
Discrimination Act Even the 
Federal Trade Commission, whleh 
has usually been more populist than 
the Antitrust Division, has diverted 
almost alt Its enforcement resource# 
.iway from the Roblnson-Patmsn 
Act Both agencies have built up sub¬ 
stantial staffs of economists, headed 
in recent years by a number of highly 
respected (but admittedly non- 
Chicago* academic economists. 
Aided by this new capability, both 
agencies do make their enforcement 
decisions generally in terms of con¬ 
sumer welfare as they perceive It. 

The largest gap between what 
Hark argues for end what the govern¬ 
ment is doing Is surely In the ares of 
corporate mergers. Bork sees roost 
anti-merger .enforcement under fac¬ 
tion T (dott Clayton Act as oa at¬ 
tempt m ImaHtra wtth manage¬ 
ment's judgment a* to the best way 
to assemble productive easels, and 
therefor* as presumptively ine#^. 
ficknfcj 

Private antitrust practitioners 


ought to read The Antitrust Paradox 
be c a us e it offetUBam clearly writ¬ 
ten arguments forfrotg back oa an¬ 
titrust enforcemsol, and becauat this 
di sc uss ! oa ef some bey case law - 
especially the early coot law - Is ex¬ 
ceptionally Illuminating. But there Is 
soother reason. Bork is very forceful 
m criticising the private Bar for In¬ 
adequacies of Its advocacy, for argu¬ 
ing antitrust cooes In mindlessly 
technical way. 

Government prosecutors ought to 
read this book because they, above 
all other parties, ought to be con¬ 
cerned with business efficiency and 
consumer welfare. Prosecutor* must 
be able to defand themselves 
rationally against Bork’i char ft 
tWt," . . In modern times. ijWM 
earlier antitrust history tbs goftritf 
inept; has, more often than-* not, 
represented thc-aati*free market 
portion and the defendant the tree 
marktf position? Ip. m) — or they 
outfit |o change Dietr ways. Public 
agsrita have no business using tha, 
puNtet funds U mindtoct? enforce* 
old ruffe if these Wt consumers by 
penalising business efficiency, and 
Borff c book arte a lot of hard ques¬ 
tions against this standard, even tor 
those who would not characterise 
consumer welfare quite so narrowly 
as hla Chicago school teaching would 
cause him to do. 

In particular, his thoughtful 
chapter UD on cooperation among 
competitors Invites government 
agencies to re-think wbst they have 
done In striking down as naked 
restraints what are essentially ancil¬ 
lary restraints in support of useful 
joint venture and partnership agree¬ 
ments. Finally, government 
prosecutors should find helpful 
Berk's excellent Chapter 16 dealing 
with Predation through 
Governmental Proceases" — \'her* 
he suggests a more precise antitrust 
rule against established com pi Ulses’ 
use *f fee administrative andjadMM 
processes to thwart new entry and 
commercial Innovation from new 
rivala. 

Probably the people who may 
most need Bork art the ones that sc* 
least likely to read him. Thaos in¬ 
clude the private litigants who stem 
to keep the courts busy with what or* 
often wholly Intellectually dl sr e^cc 
table esses, by relying on theories of 
law thai have precious little — H 
anything — to do wtth > 
welfare. I am sorry that f 
tun Ns critl 


2322 

m aw mi 



gownmearWi 

antitrust law that be 
might at least have asked whether 
frrbfe damages kssta exoffefve 
subsidy for anything but '‘hardcore” 
Sherman Act violations. 



3328 


The Chairman. Thank you very much. 

Our next witness is Mr. James Halverson, a partner in the law 
firm of Shearman & Sterling, and former chairman of the antitrust 
section of the American Bar Association. Welcome, Mr. Halverson. 
It’s a pleasure to have you here. 

TESTIMONY OF JAMES T. HALVERSON 

Mr. Halverson. Thank you, Mr. Chairman. 

I might add that, since I am a former chairman of the section on 
antitrust law of the ABA, I am required to say that I speak only 
for myself. The ABA, as you know, has already spoken on this sub¬ 
ject. 

I am very honored to appear today to support the nomination 
Judge Robert Bork for Associate Justice of the Supreme Court of 
the United States. In doing so, I draw on my 22 years of experience 
in antitrust litigation and advisory work, including 2 years, from 
1973 to 1975, as Director of the Bureau of Competition at the Fed¬ 
eral Trade Commission, where I wasn’t exactly known as a “nonac¬ 
tive” prosecutor. 

I have known Judge Bork since my days in the Government in 
the early 1970’s and had a number of pleasurable experiences in 
discussing antitrust issues with him since then. 

In reflecting on the criticisms leveled at the extraordinary schol¬ 
arly work done by Judge Bork in the field of antitrust, it is difficult 
for me to comprehend how knowledgeable people could take issue 
with Judge Bork’s significant contributions to the improvement of 
our understanding of how antitrust laws were originally intended 
to be enforced in the interest of enhancing consumer welfare. 
Judge Bork’s writings within the antitrust area have been among 
the most influential and scholarly ever produced. His book, “The 
Antitrust Paradox,” which he published in 1978, is perhaps the 
most important single work in this field in the past 25 years. 

I might add that the other multivolume treatise of great signifi¬ 
cance in this period, in my view, is that of Professor Areeda, sitting 
next to me. 

Consistently, since his “Separate Statement” dissenting from the 
“Report of the White House Task Force on Antitrust Policy” in 
1968—that’s almost 20 years ago—then Professor, now Judge Bork, 
has stressed that consumer welfare is the intended goal of the anti¬ 
trust laws and that that welfare is best promoted by allowing 
American firms to enhance their efficiency through intensely com¬ 
petitive activity which increases consumer welfare by increasing 
firm output. Active and intense competition which increases output 
and lowers price for the American consumer is to be encouraged 
even if some inefficient firms suffer in the process. 

That is a lesson that some of us who practiced antitrust have 
learned from reading Professor Bork. 

Although the brilliance of Judge Bork’s analysis is most evident 
in “The Antitrust Paradox,” it is important to remember that in 
his 1968 dissent from the White House Task Force Report he ob¬ 
jected strenuously to the proposal for a “Concentrated Industries 
Act” which would have deconcentrated basic American industries 
on the basis of nothing more than disputed economic studies pur- 



3329 


porting to show a correlation between industry concentration and 
profitability. 

In my statement, Mr. Chairman, which I ask to be included in 
the record, I do quote from his dissent, which I think is a valuable 
contribution to the literature. 

The Chairman. Your entire statement will be put in the record. 

Mr. Halverson. As any student of antitrust will remember, 
there was a period in the history of U.S. antitrust enforcement 
during which cases were brought on the basis of an assumption, 
now overwhelmingly thought to be invalid, that somehow an indus¬ 
try’s moderate to high level of concentration and higher than aver¬ 
age profitability, whatever that meant, were bad for the American 
consumer. In fact, had this nation succeeded in a program of decon¬ 
centrating its most important industries in the early 1970’s, it 
would have faced even more severe economic problems in confront¬ 
ing growing and rapidly developing world markets and industry 
structures throughout the 1970s and the 1980s. 

Judge Bork’s 1978 book, “The Antitrust Paradox,” has had an ex¬ 
traordinary influence in the refinement by the Supreme Court of 
its views in a number of antitrust cases. Since its publication, this 
outstanding work has been cited approvingly in six majority opin¬ 
ions written by Justices commonly viewed as having widely vary¬ 
ing judicial philosophies: Justice Brennan in the Cargill case in 
1986, Justice Powell in the Matsushita case in 1986, Justice Ste¬ 
vens in the Aspen Skiing case in 1985, and in the NCAA case in 
1984, and Chief Justice Burger in two 1987 cases, Reiter v. Sonotone 
and United States v. United States Gypsum Co. 

Justice O’Connor cited Judge Bork’s book in her 1984 concurring 
opinion, which is highly thought of, in the Jefferson Parish case, as 
did Justice Blackman in his 1978 dissent in the National Society of 
Professional Engineers case. 

Indeed, for those who criticize Judge Bork as not being in the 
mainstream, it should be noted that every member of the present 
Supreme Court joined one or another of these opinions. 

As I have said in an earlier letter to the editor of the Washing¬ 
ton Post, the fact that six of the nine present Justices have cited 
Judge Bork's book, and that all of them have joined opinions citing 
it, demonstrates clearly to me at least that the claims of Judge 
Bork’s critics that his antitrust views are not in the mainstream or 
somehow extreme are just plain wrong. 

Judge Bork’s critics are also quite wrong in suggesting that 
Judge Bork’s antitrust writings are anticonsumer. To the contrary, 
the central thesis of Judge Bork’s book, as I pointed out, and as I 
have quoted in my statement, is a maximization of consumer wel¬ 
fare. 

It is true that Judge Bork has also stressed that the protection of 
consumer welfare is sometimes inconsistent with the protection of 
some businesses from legitimate competition. There key point here, 
however, is that Judge Bork advocates pro-competitive policies 
which promote the very efficiency that makes the enhancement of 
consumer welfare possible. 

Therefore, in my view, it is Judge Bork’s critics and not Judge 
Bork who are out of touch with the center of legitimate judicial 



3330 


and economic thought about the proper direction of antitrust anal¬ 
ysis. 

As I said in my earlier letter, the mainstream view, which no 
one has helped promote more than Judge Bork, is that the proper 
antitrust policy is one which encourages strong private and govern¬ 
ment action to promote consumer welfare, rather than unnecessary 
government intervention to protect politically favored competitors. 

Thank you very much. 

[The prepared statement of James T. Halverson follows:] 



3331 


STATEMENT OF JAMES T. HALVERSON 
SHEARMAN h STERLING, NEW YORK, N.Y. 
BEFORE THE COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 


IN SUPPORT OF THE NOMINATION OF 
ROBERT H. BORK 
AS ASSOCIATE JUSTICE OF 
THE SUPREME COURT OF THE UNITED STATES 


September 29, 1987 



3332 


Me. Chairman and members of the Committee, I am honored 
to appear today to support the nomination of Judge Robert H. 
Bork for Associate Justice of the Supreme Court of the United 
States. In doing so, I draw on my twenty-two years of 
experience in antitrust litigation and advisory work, 
including two years <1973-75) as Director of the Bureau of 
Competition at the Federal Trade Commission. 

In reflecting on the criticisms leveled at the 
extraordinary scholarly work done by Judge Bork in the field 
of antitrust, it is difficult for me to comprehend how anyone 
could take issue with Judge Bork's significant contributions 
to the improvement of our understanding of how the antitrust 
laws were originally intended to be enforced in the interest 
of enhancing consumer welfare. Judge Bork's writings within 
the antitrust area have been among the most influential and 
scholarly ever produced. His book, The Antitrust Paradox , 1 
which he published in 1978, is perhaps the most important 
single work written in this field in the past twenty-five 
years. 

Consistently, since his "Separate Statement" dissenting 
from the Report of the White House Task Force on Antitrust 


1 R. Bork, The Antitrust Paradox <1978) 




3333 


2 


Policy in 1968*, then Professor (now Judge) Bork has 
stressed that consumer welfare is the intended goal of the 
antitrust laws and that that welfare is best promoted by 
allowing American firms to enhance their efficiency through 
intensely competitive activity which increases consumer 
welfare by increasing firm output. Active and intense 
competition which increases output and lowers price for the 
American consumer is to be encouraged even if some 
inefficient firms suffer in the process. 

Although the brilliance of Judge Bork's analysis is most 

evident in The Antitrust Paradox, it is important to remember 

that in his 1968 dissent from the white House Task Force 

Report, he objected strenuously to the proposal for a 

"Concentrated Industries Act" which would have deconcent rated 

basic American industries on the basis of nothing more than 

disputed economic studies purporting to show a correlation 

between industry concentration and profitability. As then 

Professor Bork said in 1968: 

The dissolution of such firms would be a disservice 
to consumers and to national strength. When firms 
grow to sizes that create concentration or when such 
a structure is created by merger and persists for 
many years, there is a very strong prima facie case 
that the firms’ sizes are related to efficiency. By 
efficiency I mean ‘competitive effectiveness’ within 

7 Separate statement of Robert H. Bork , Report of the 

White House Task Force on Antitrust Policy , 2 J.L. S. 
Econ. Rev. 53 (1968-69). (Hereinafter “Separate 
Statement"). 


3334 


3 


the bounds of the law, and competitive effectiveness 
means service to consumers. If the leading firms in 
a concentrated industry are restricting their output 
in order to obtain prices above the competitive 
level, their efficiencies must be sufficiently 
superior to that of all actual and potential rivals 
to offset that behavior. Were this not so, rivals 
would be enabled to expand their market shares 
because of the abnormally high prices and would thus 
deconcentrate the industry. Market rivalry thus 
automatically weighs the respective influences of 
efficiency and output restriction and arrives at the 
firm sizes and industry structures that serve 
consumers best. There is, therefore, no need for 
the proposed Concentrated Industries Act, and, in 
fact, its results would be detrimental. 5 

As any student of antitrust will remember, there was a 
period in the history of U.S. antitrust enforcement during 
which cases were brought on the basis of an assumption, now 
overwhelmingly thought to be invalid, that, somehow, an 
industry’s moderate to high level of concentration and higher 
than average profitability were bad for the American 
consumer. In fact, had this nation succeeded in a program of 
deconcentrating its most important industries in the early 
1970's, it would have faced even more severe economic 
problems in confronting growing and intensive competition 
from foreign firms and the rapid emergence of intensely 
competitive world markets and industry structures throughout 
the 1970's and 80’s. 


Separate Statement at 54. 



3335 


4 


Judge Bork's 1978 book. The Antitrust Paradox, has had an 
extraordinary influence in the refinement by the Supreme 
Court of its views in a number of antitrust cases. Since its 
publication, this outstanding work has been cited approvingly 
in six majority opinions written by Justices commonly viewed 
as having widely varying judicial philosophies. Justice 
Brennan in the Cargi11 * case in 1986, Justice Powell in the 
Wat sushit a 5 case in 1986, Justice Stevens in the Aspen 
Skiing *' case in 1986 and in the NCAA’ case in 1984 and 
Chief Justice Burger in two 1978 cases, Reiter v. Sonotone * 
and United States v. United States Gypsum Co .’ Justice 
O'Connor cited Judge Bork’s book in her 1984 concurring 
opinion in Jefferson Parish Hospital District No. 2 v. 

Hyde, ' 0 as did Justice Blackman in his 1978 dissent in 
National Society of Professional Engineers v. United 
States . 11 Indeed, it should be noted that every member of 
the present Supreme Court joined one or another of these 
opinions. 


* Cargill, Inc, v. Monfort of Colorado, Inc .. 107 S. Ct. 

484, 495 n.17 (1986). 

* Matsushita Elec. Indus, v. Zenith Radio, Co .. 106 S. Ct. 

1348, 1357 (1986). 

‘ Aspen Skiing Co. v. Aspen Highlands Skiing Corp ., 105 
S. Ct. 2847, 2858 and n.29, 31, 2860-61 n. 39 (1985). 

7 NCAA v. Board of Regents , 468 U.S. 85, 101 (1984). 

* Reiter v. Sonotone Corp ., 442 U.S. 330, 343 (1978). 

’ United States v. United States Gypsum Co ., 438 U.S. 422, 
442 (1978). 

10 Jefferson Parish Hospital District No. 2 v. Hyde , 466 

U.S. 2, 36 (1984). 

11 National Society of Professional Engineers v. United 

States , 435 U.S. 679, 700 n.» (1978). 




3336 


5 

As I have said earlier in a letter to the Editor of The 
Washington Post , the fact that six of the nine present 
Justices have cited Judge Bork's book, and that all of them 
have joined opinions citing it, demonstrates clearly that the 
claims of Judge Bork's critics that his antitrust views ate 
not in the mainstream or somehow 'extreme” are just plain 
wrong. 

Judge Botk's critics are also quite wrong in their 
suggestion that Judge Bork's antitrust writings are 
anticonsumer. To the contrary, the central thesis of Judge 
Bork's book, as summarized in chapter 2 , is that: 

(1) The only legitimate goal of American Antitrust 
law is the maximization of consumer welfare; 
therefore, 

(2) "Competition", for purposes of antitrust 
analysis, must be understood as a term of art 
signifying any state of affairs in which consumer 
welfare cannot be increased by judicial decree.' 2 

It is true that Judge Bork has also stressed that 

protection of consumer welfare is sometimes inconsistent with 
protection of some businesses from legitimate competition. 

The key point, here, however, is that Judge Bork advocates 
pro-competitive policies which promote the very efficiency 
that makes the enhancement of consumer welfare possible. 


1 1 


R. Bork, The Antitrust Paradox at 51. 




3337 


6 


Therefore, Judge Bork's critics, and not Judge Bork, are 
out of touch with the center of legitimate judicial and 
economic thought about the proper direction of antitrust 
analysis. As I said in my earlier letter, the mainstream 
view, which no one has helped promote more than Judge Bork, 
is that the proper antitrust policy is one which encourages 
strong private and government action to promote consumer 
welfare rather than unnecessary government intervention to 
protect politically favored competitors. 

Thank you for giving me the opportunity to present my 
views. 



3338 


The Chairman. Thank you. 

Our next witness is Mr. Thomas Kauper, professor of law at the 
University of Michigan Law School, and a former Assistant Attor¬ 
ney General of the Antitrust Division. 

Mr. Kauper. Thank you, Mr. Chairman. I trust that my state¬ 
ment will be submitted for the record. 

The Chairman. Yes, the entire statement will be inserted in the 
record. 


TESTIMONY OF THOMAS E. KAUPER 

Mr. Kauper. Judge Bork has been a major figure in the antitrust 
field for three decades. His views, expressed primarily in his schol¬ 
arly writings during a very creative and productive period in aca¬ 
demic life, have been highly influential in the evolution and refor¬ 
mulation of antitrust doctrine. He has been influential precisely 
because his ideas have been accepted, in whole or in part, by aca¬ 
demics, policy makers and judges—including Justices of the Su¬ 
preme Court—in large numbers. 

Many in academic life aspire to have such an impact through 
what we write. Few ever achieve it. That Judge Bork has done so is 
grounds for praise, not condemnation. 

Judge Bork's antitrust views are very much in the mainstream 
of current thinking. His central thesis, that the sole goal of the 
antitrust laws is consumer welfare, is based upon a careful analysis 
of the legislative history of the Sherman Act. This basic proposition 
is still challenged by some, who would use the antitrust laws to sat¬ 
isfy additional social and political ends. The debate over goals 
rages on in academic journals, and within the Congress. But the 
Supreme Court, in a series of decisions beginning in 1977, has ap¬ 
parently agreed with Judge Bork’s starting proposition. So, too, the 
Court in the past decade has developed substantive antitrust doc¬ 
trine in accord with an economic analysis focused on price and 
output effects, as Judge Bork’s writings have urged. Unless the Su¬ 
preme Court of the past decade has itself been outside the main¬ 
stream of antitrust thinking, Judge Bork is clearly within it. 

This is not to suggest that the Supreme Court has agreed with 
everything Judge Bork has written. The Court, for example, has 
shown no willingness to depart from the rule that resale price 
maintenance is per se illegal despite criticism of the rule by Judge 
Bork—and, I might add, a number of others—and the fact that the 
rule appears inconsistent with the rationale of the Sylvania case. 

In his powerful book, “The Antitrust Paradox,” Judge Bork criti¬ 
cizes a number of Supreme Court decisions. But if criticism of Su¬ 
preme Court opinions is grounds for disqualification from taking a 
seat on the Court, virtually the entire academic community would 
be equally disqualified. 

It should not be assumed that Judge Bork would vote to overrule 
Supreme Court decisions which he has criticized in the past. His 
antitrust analysis is predicated on legislative intent, the need for 
certainty and predictability in judicially formulated rules, the de¬ 
sirability of standards which can be intelligently and manageably 
applied in the litigation process, and a recognition that judges are 
not free to implement their own social and economic policies. 



3339 


Within such a philosophy, longstanding judicially formulated rules 
upon which substantial reliance has been placed are not to be over¬ 
ruled lightly. The suggestion of some that Judge Bork would feel 
free to ignore a federal statute with which he disagreed is even 
more extreme and totally inconsistent with the philosophy he has 
repeatedly expressed. 

Some of Judge Bork’s critics have suggested that his views reflect 
nothing more than a bias in favor of big business. Most charitably, 
this reflects a misunderstanding of what he has said. The antitrust 
policies he has formulated are neither pro-business nor anti-busi¬ 
ness, but are a coherent set of principles designed to promote con¬ 
sumer welfare. Their application is not governed by the defendant’s 
size. His views could not have commanded the widespread respect 
of scholars and judges if they were based on nothing more than 
personal bias. 

During his tenure as Solicitor General, Judge Bork was responsi¬ 
ble for handling the Government’s antitrust cases in the Supreme 
Court. It was during that same period that I served as Assistant 
Attorney General in charge of the Antitrust Division. I can person¬ 
ally attest to the full support which he gave to the Antitrust Divi¬ 
sion during his tenure. Perhaps he simply agreed with the posi¬ 
tions we were taking. If he did not, he did not use his position to 
reshape the Government’s enforcement policy. During his brief 
tenure as Acting Attorney General, Judge Bork was required under 
then-existing Department policies to approve all Antitrust Division 
cases as a prerequisite to filing. He did so without reservation and 
with a dispatch uncharacteristic of Attorneys General under whom 
I worked. He served the Department and the nation in accord with 
the highest standards of professionalism. 

As a judge of the Court of Appeals for the District of Columbia 
Circuit, Judge Bork has written few antitrust opinions. Only one, 
the Rothery case, has been criticized for its holding that actions 
taken by a joint venture with 6 percent of the market could not be 
anticompetitive. But the idea that firms which lack market power 
cannot have an adverse competitive impact is hardly a novel idea. 
Other courts have said the same, and the idea is simply too sensi¬ 
ble to be characterized as a radical departure from the main¬ 
stream. 

In conclusion, Judge Bork has a long and distinguished record as 
an academic, public official, and judge. In terms of experience, in¬ 
tellect and integrity, few persons nominated to the Court during 
my professional lifetime have been as qualified. 

I am not a constitutional scholar, but I do know Judge Bork. I do 
not know the Judge Bork portrayed in some press accounts. He 
knows that constitutional protections are not determined by major¬ 
ity vote. He believes in the individual and what the individual, un¬ 
fettered by Government restraint, can accomplish. He values the 
power of free speech, and he is a warm and compassionate human 
being. 

I am proud to support his nomination to serve as Associate Jus¬ 
tice of the Supreme Court of the United States. Thank you, Mr. 
Chairman. 

[The prepared statement of Thomas E. Kauper follows:] 



3340 


STATEMENT 

of 

Professor Thomas E. Kauper 
Henry M. Butzel Professor of Law 
University of Michigan Law School 

My name is Thomas E. Kauper. I am currently Henry M. 
Butzel Professor of Law at the University of Michigan Law School. 

I have been teaching and writing in the antitrust field since 1964. 
From July, 1972 through July, 1976, I served as Assistant Attorney 
General in charge of the Antitrust Division, United States 
Department of Justice. During a substantial part of that period. 
Judge Robert Bork served as Solicitor General of the United States, 
while I had known Judge Bork previously through his writings, I 
came to know him well personally while we were colleagues at the 
Department. We went through a good deal together. 

Judge Bork has been a major figure in the antitrust 
field for three decades. His views, expressed primarily in his 
scholarly writings during a very creative and productive period in 
academic life, have been highly influential in the evolution and 
reformulation of antitrust doctrine . 1 He has been influential 
precisely because his ideas have been accepted, in whole or in 
part, by academics, policy makers and judges (including Justices of 
the Supreme Court) in large numbers. Many in academic life aspire 
to have such an impact simply through what we write. Few ever 
achieve it. That Judge Bork has done so is grounds for praise, not 
condemnation. He has put forth a simple but powerful set of ideas, 
ideas which have influenced the law of their own force. 

Judge Bork's antitrust views are very much in the 
mainstream of current thinking. His central thesis, that the sole 
goal of the antitrust laws is consumer welfare, is based upon a 
careful analysis of the legislative history of the Sherman Act. 

This basic proposition is still challenged by some, who would use 
the antitrust laws to satisfy additional social and political ends. 
The debate over goals rages on in academic journals, ^ and within 



3341 


the Congress. But in a series of decisions beginning with 
Continental T.V. , Inc. v. GTE Sylvania , Inc. , 433 U.S. 36 (1977), 
the Supreme Court has apparently agreed with Judge Bork's starting 
proposition.^ So too the Court in the past decade has developed 
substantive antitrust doctrine in accord with an economic analysis 
focused on price and output effects, as Judge Bork’s writings have 
urged. The Sylvania case and the Court's decision in Matsushita 
Electric Industrial Co. v. Zenith Radio Corp. , 475 U.S. 574 (1986) 
are but two examples. Unless the Supreme Court of the past decade 
has itself been outside the mainstream of antitrust thinking, Judge 
Bork is clearly within it. 

This is not to suggest that the Supreme Court has agreed 
with everything Judge Bork has written. The Court, for example, 
has shown no willingness to depart from the rule first adopted in 
Dr. Miles Medical Co. v. John D. Park & Sons Co. , 220 CJ.S. 373 
(1911) that resale price maintenance is per se illegal , despite 
criticism of the rule by Judge Bork (and a number of others) and 
the fact that the rule appears inconsistent with the rationale of 
the Sylvania case. In his powerful book, The Antitrust Paradox , 
Judge Bork criticizes a number of Supreme Court decisions. But if 
criticism of Supreme Court opinions is grounds for disqualification 
from taking a seat on the Court, virtually the entire academic 
community would be equally disqualified. Such criticism is part of 
our 30 b. 


It should not be assumed that Judge Bork would vote to 
overrule Supreme Court decisions which he has criticized in the 
past. His antitrust analysis, set forth in detail in The Antitrust 
Paradox , is predicated on legislative intent, the need for 
certainty and predictability in judicially formulated rules, the 
desirability of standards which can be intelligently and manageably 
applied in the litigation process, and a recognition that judges in 
a democratic society are not free to implement their own political 
and social policies. Within such a philosophy, long-standing 
judicially formulated rules upon which substantial reliance has 
been placed are not to be overruled lightly. The suggestion of 



3342 


some that Judge Bork would feel free to ignore a federal statute 
with which he disagreed is even more extreme, and totally 
inconsistent with the philosophy he has repeatedly expressed. 

Some of Judge Bork's critics have suggested that his 
views reflect nothing more than a bias in favor of “big business.' 1 
Most charitably, this reflects a misunderstanding of what he has 
said. The antitrust policies he has formulated are neither pro¬ 
business nor anti-business, but are a coherent set of principles 
designed to promote consumer welfare. Their application is not 
governed by the defendant's size. His views could not have 
commanded the widespread respect of scholars and judges if they 
were based on nothing more than personal bias. 

During his tenure as Solicitor General, Judge Bork was 
responsible for handling the government's antitrust cases in the 
Supreme Court. I can personally attest to the full support which 
he gave to the Antitrust Division during his tenure. Perhaps he 
simply agreed with the positions we were taking. If he did not, he 
did not use his position to reshape government enforcement policy 
in accord with his own views. During his brief tenure as Acting 
Attorney General, Judge Bork was required under then-existing 
Department policies to approve all Antitrust Division cases as a 
prerequisite to filing. He did so, without reservation and with a 
dispatch uncharacteristic of Attorneys General under whom I 
worked. He served the Department, and the nation, in accord with 
the highest standards of professionalism. 

As a }udge of the Court of Appeals for the District of 
Columbia Circuit, Judge Bork has written few antitrust opinions. 

His opinion in FTC v. PPG Industries , Inc. , 796 F.2d 1500 (D.C. 

Cir. 1986) , a merger case, is carefully crafted and fully 
consistent with standards applied by the Supreme Court under 
Section 7 of the Clayton Act. To my knowledge, no one has 
suggested otherwise. The most significant of his antitrust 
opinions is Rotherv Storage £ Van Co. v. Atlas Van Lines , Inc. , 792 



3343 


F.2d 210 (D.C. Cir. 1986). In Rothery , Judge Bork concluded that 
actions taken by a moving van line, a joint venture, could not be 
anti-competitive because with a market share of but six (6) percent 
defendants lacked the market power to have any impact on price or 
output. Some have suggested that in using such a market power 
test. Judge Bork was applying a standard inconsistent with 
contemporary antitrust standards in pursuit of his own views. This 
is simply not so. The idea that firms which lack market power {as 
measured by market share) cannot have an adverse competitive impact 
is hardly a novel idea. Other courts have said the same. 4 This 
approach is too sensible to be characterized as a radical departure 
from the mainstream. 

Judge Bork has a long and distinguished record as an 
academic, public official and judge. In terms of experience, 
intellect and integrity, few persons nominated to the Court during 
my professional lifetime have been as qualified. At the core of 
his antitrust views is a philosophy of judicial restraint which 
rests on the fundamental proposition that in a democratic society 
legislatures, not judges, should make social and political 
judgments. This is not a philosophy which advocates that judges 
implement their own political views. I am not a constitutional 
scholar. But 1 know Judge Bork. I do not know the Judge Bork 
portrayed in some press accounts. He knows that constitutional 
protections are not determined by majority vote. He believes in 
the individual, and what the individual, unfettered by government 
restraint, can accomplish. He values the power of free speech. 

And he is a warm and compassionate human being. I am proud to 
support his nomination to serve as Associate Justice of the Supreme 
Court of the United States. 



3344 


NOTES 


1. See particularly Bork, THE ANTITRUST PARADOX (1978),- Bork, 
Vertical Integration and the Sherman Act : The Legal History of an 
Economic Misconception . 22 U. Chi. L. Rev. 157 (1954); Bork and 
Bowman, The Crisis in Antitrust , 65 Colum. L. Rev. 363 (1965); 
Bork, The Rule of Reason and the Per Se Concept : Price Fixing and 
Hark -. "Division , Part II . 74 Yale L.J. 775 (1965) and Part II . 75 
Yale L.J. 373 (1966); Bork, Legislative Intent and the Policy of 
the Sherman Act . 9 J. Law i Econ. 7 (1966); Bork, A Reply to 
Professors Gould and Yaroev . 76 Yale L.J. 731 (1967); Bork, Resale 
Price Maintenance and Consumer Welfare . 77 Yale L.J. 950 (1968). 


2. For a very recent exchange, compare Easterbrook, Workable 
Antitrust Policy . 84 Mich. L. Rev. 1696 (1986) with Fox, Consumer 
Beware Chicago . 84 Mich. L. Rev. 1714 (1986) and Fox, The 
Modernization of Antitrust : A Hew Eguilibrium . 66 Cornell L. Rev. 
1140 (1981). 


3. See , e.g. . Broadcast Music , Inc, v. Columbia Broadcasting 
System , Inc ■ . 441 U.S. 1 (1979) ; National Collegiate Athletic 
Ass'n v. Board of Regents of University of Oklahoma . 468 U.S. 85 
(1984); Matsushita Electric Industrial Co. v. Zenith Radio Corp. . 
475 U.S. 574 (1986); Cargill . Inc, v. Monfort of Colorado , Inc. , 
107 S. Ct. 484 (1986). 


4. See , e-g. . R. C. Dick Geothermal Corp. v. Thermogenlcs , Inc. , 
1987-1 CCH Trade Cas. 67, 483 (9th Cir.) and cases there cited. 































3345 


The Chairman. I am sure he is proud to have to have men of 
your caliber supporting his nomination. It is a great tribute to him. 

I only have one question, and I will preface my question with a 
brief remark; that is, it is true, I would say to Mr. Halverson, that 
I have read—and I believe what prompted your letter to the editor, 
to the press, stating that Judge Bork was out of the mainstream in 
antitrust. 

We have heard here in the hearings that his attitude towards 
various forms of retail price maintenance and other issues are anti¬ 
consumer. 

But I must tell you my concern because I am one of those folks 
who, although viewed on civil liberties and civil rights as a “liber¬ 
al,” has been skeptical about the utility of our antitrust laws in a 
changing world. But what my concern is—and I raise this with all 
of you, and any one of you or all of you who wish to speak to it—is 
that there seems to me to be a dichotomy between how Judge Berk 
views the role of judging when it comes to antitrust questions as 
distinct from with his view of judging as it comes to all other ques¬ 
tions. 

He talks about being a majoritarian, a Madisonian, as he defines 
Madisonian terms. He argues very strenuously and in a very ar¬ 
ticulate and powerful way that legislatures should make the deci¬ 
sions, not nine men and women sitting in a court across the 
street—and I won’t go into his basic philosophy on the law, which I 
suspect you all understand well. I think after reading all he has 
written and listening to him intensely for over 30 hours, I think I 
have a sense of what his basic philosophy is. 

There seems to be an inconsistency, and it is one I would like to 
raise with you. 

Mr. Abeeda. May I respond to that? 

The Chairman. Let me finish the question, if I can. 

He has described the Supreme Court's obligation, to respond to 
the will of the Congress in the area of antitrust as an “institutional 
handicap.” He said very clearly that the courts, when confronted 
with laws which are “unrelated to reality,” and which are utterly 
arbitrary, should simply refuse to enforce those laws as written. 

Now, that’s related to antitrust. As it relates to privacy and 
other questions, he says, no matter how arbitrary, no matter how 
unrelated to reality they are, if the majority passes them, unless 
they are explicitly prevented from doing so in the Constitution, the 
judge should adhere to it. 

You understand my problem. Would you respond, Professor, to 
the apparent dilemma I have? 

Mr. Areeda. Yes. The first and perhaps most important distinc¬ 
tion is that when dealing with a statute, the legislature that en¬ 
acted it can always change it. If the Court is wrong about a consti¬ 
tutional matter, by contrast, it speaks the last word, leaving no 
room for the legislature to correct it. 

Second, the antitrust laws are very peculiar statutes, for say 
almost nothing. Virtually all of antitrust law is a judicial creation 
based on a few very vague and general words in the Sherman Act 
of 1890 and the legislation of 1914. So Congress has not spoken— 
and I think most observers agree—with any clarity about how to 
give meaning to the general words of the antitrust statutes. 



3346 


So the courts have no choice but to create such internal coher¬ 
ence, consistency, and wisdom as they can muster. Antitrust law is 
more like a common law subject than a statutory subject, because 
it is virtually all judge-created. 

The particular sentence you quoted from “The Antitrust Para¬ 
dox” is a hyperbole that fits the particular illustration that Judge 
Bork used. The illustration was of an imaginary legislature that 
made a defendant guilty—or innocent—if the court finds that spir¬ 
its have brought about the challenged activity. Bork commented 
that no judge could intelligently implement such a statute. 

He was suggesting that some parts of the antitrust laws might 
involve a contradiction. On the one hand the statute specifies that 
the courts are to protect competition. At the same time, one can 
find some statements by some legislators in the course of the legis¬ 
lative history that they meant to protect inefficient producers from 
marketplace competition. The essence of what Professor Bork 
said—and I say Professor Bork because these writings are from his 
academic days—was that one should look at the general concept 
stated in the statute and make what sense out of it one can until 
Congress legislates more specifically. 

Mr. Kauper. Senator, may I address that just briefly? 

The Chairman. Sure. Please do. 

Mr. Kauper. The dichotomy which you suggest is based on some 
notion that in enforcing the antitrust lawB, as Judge Bork per¬ 
ceives them, he is not really giving credit to legislative intention 
or- 

The Chairman. Well, let me be very specific. He says specifical¬ 
ly, that if the Congress passes a law that is unrelated to reality- 

Mr. Kauper. Correct. 

The Chairman. If Congress passes a law, they mean to pass a 
law. 

Mr. Kauper. Senator, I understand that. The poltergeist example 
is the one which he uses in the book, and to which Professor 
Areeda has already alluded. 

But let us make clear we understand a distinction between what 
the legislative intention is on the one hand and a judicial philoso¬ 
phy. Put another way, we might disagree with Judge Bork’s read¬ 
ing of legislative history, but that does not mean that, as a process, 
that’s not what he’s doing. He thinks at least that is what he’s 
doing. 

As to the example of the situation of the law which seems to 
make no sense, it is in the setting of a statute—and I think this 
reference was primarily with respect to the Clayton Act and the 
Robinson-Patman Act—the last words of which say the conduct is 
unlawful where it tends to lessen competition. The question then is 
what does a judge do if the judge examines that particular conduct 
and finds, based on the general perception of what competition is, 
that conduct in this category does not lessen competition? 

Now, I don’t think one can suggest that that conclusion by a 
judge is inconsistent with the legislative intention at all. The judge 
has simply not been able to find that the conduct in question has 
that effect. If the Congress has determined otherwise, then presum¬ 
ably the statute will have to be enforced. 



3347 


But given the language of the antitrust laws, I don’t believe you 
can come to that conclusion. 

The Chairman. I want to thank you very much. 

Senator Thurmond. 

Senator Thurmond. Thank you very much. I just have two ques¬ 
tions for each of you. 

Is Judge Bork, in your opinion, competent in antitrust matters, 
and if he is confirmed to the Supreme Court, will he be fair and 
reasonable and look after the interests of the consumers? That’s 
one question. I would like to get your answer on that. 

We’ll start right here and go right down the line. Call out your 
name and tell me the answer, yes or no. 

Mr. Kauper. Thomas Kauper. I don’t have any doubt, that the 
answer to the question is yes, he would be fair and reasonable, and 
he would keep the Court approximately where it is right now. 

Mr. Baker. Donald Baker. I entirely agree. He is a fair, reasona¬ 
ble and thoughtful person, very dedicated to consumer welfare. 

Mr. Areeda. Phillip Areeda. Yes- 

Senator Thurmond. And would look after consumers? 

Mr. Baker. Absolutely. 

Mr. Areeda. Yes. 

Mr. Halverson. James T. Halverson. The answer is a very defi¬ 
nite yes. 

Senator Thurmond. The next question is, taking him all around 
now, not just antitrust, does he possess the qualities that is expect¬ 
ed of a Supreme Court Justice? The American Bar Association con¬ 
siders mainly three points: integrity, judicial temperament, and 
professional competence. I would add to that courage and dedica¬ 
tion, too, and common sense. 

In your opinion, does he possess those qualities and would he 
make an able, a fair, and a reasonable Supreme Court Justice? 
Does he possess those qualities and would you approve of him to be 
on the Supreme Court? 

Mr. Kauper. Senator, I think, based on the American Bar stand¬ 
ards, my standards, or the standards which I think this committee 
should apply, the answer is yes. 

Senator Thurmond. Speak a little louder. 

Mr. Kauper. I’ll try it again. Based on the ABA standards, which 
you have suggested, and my own sense of standards, or the stand¬ 
ards which I believe this committee should apply, and that the 
Senate of the United States should apply, I think he is highly 
qualified and should be confirmed. 

Senator Thurmond. Mr. Baker. 

Mr. Baker. I wouldn't be here unless the answer to your ques¬ 
tion is yes, and strongly yes. He is an exceptional man and would 
be an exceptional Justice. 

Mr. Areeda. I agree. 

Senator Thurmond. Mr. Halverson. 

Mr. Halverson. He is one of the most extraordinary minds and 
one of the finest gentlemen I have ever met. He would make an 
excellent Supreme Court Justice. 

Senator Thurmond. Thank you very much. That’s all the ques¬ 
tions I have, Mr. Chairman. 


88-374 0 - 89-21 



3348 


The Chairman. Thank you very much, gentlemen, for spending 
so much time with us today and coming on so late. Your testimony 
is much appreciated. You all are excused. Thank you. 

With regard to tomorrow’s schedule, we will start tomorrow 
morning and hopefully finish all public witnesses tomorrow. I don’t 
think it’s likely we are able to get finished in time to have our vote 
in committee on Thursday, but 1 would like you and I to talk about 
that. I would like to suggest the possibility of Tuesday afternoon. 
But if you and 1 can discuss that a little bit when we adjourn, we 
will announce tomorrow when we will have the executive commit¬ 
tee meeting for a vote on the nomination in committee. 

I thank everyone for their patience. The schedule for tomorrow 
is, I believe, begins with an antitrust panel, made up of the dean of 
Georgetown Law Center, the attorney general of New York, and 
the attorney general of West Virginia, and then moves on with 
Beverly LaHaye, president of Concerned Women for America, and 
ends the day. Then we have Vilma Martinez, a Los Angeles attor¬ 
ney, and then two panels, then Roy Innis, Congress for Racial 
Equality, and three more panels. With the grace of God and the 
good will of the neighbors, we will have the public session conclud¬ 
ed. 

I thank you all for your indulgence. We are recessed until tomor¬ 
row at 10 am. 

[Whereupon, at 7 p.m., the committee adjourned to reconvene at 
10 a.m., Wednesday, September 30, 1987.] 



NOMINATION OF ROBERT H. BORK TO BE 
ASSOCIATE JUSTICE OF THE SUPREME COURT 
OF THE UNITED STATES 


WEDNESDAY, SEPTEMBER 30, 1387 

U.S. Senate, 

Committee on the Judiciary, 

Washington, DC. 

The committee met, pursuant to notice, at 10:04 a.m., in room 
SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr. 
(chairman of the committee) presiding. 

Also present: Senators Kennedy, Metzenbaum, DeConcini, Leahy, 
Heflin, Thurmond, Hatch, Simpson, Grassley, Specter, and Hum¬ 
phrey. 

The Chairman. Good morning, everyone. I welcome our first 
panel and all those who are waiting. I have a few brief remarks to 
make before we hear from our witnesses. 

First of all, I would like the press to note that I apparently have 
breathed new life into Mr. Kinnock’s campaign. He is more in the 
news now than he ever has been, and I have sent him all my 
speeches. [Laughter.] 

Secondly, I would like to point out that I have been sent—and I 
want to make sure I get this straight—the committee is in receipt 
of letters signed by 1,925 law professors opposing Judge Bork’s con¬ 
firmation. The reason I mention that now rather than just quietly 
put them in the record, as I was going to, is yesterday the assertion 
was made that maybe this was somehow by one of the law deans 
all manufactured out of whole cloth. They are the letters, almost 
2,000. Almost 40 percent of the active, practicing law professors in 
America have sent letters signed individually—and I will put them 
in the record—objecting to Judge Bork becoming Justice Bork. 

The 1,925 figures represents, I am told, 40 percent of the full¬ 
time law faculty of the American Bar Association-accredited law 
schools in 47 States and the District of Columbia. I might add that 
there are no ABA-accredited law schools in Rhode Island, Alaska 
and Nevada. The 1,925 figure also represents a faculty from 90 per¬ 
cent of the ABA-accredited law schools, 153 schools out of a total of 
172 schools. 

To give you a basis of comparison, only 300 law professors signed 
letters opposing the nomination of G. Harold Carswell. These let¬ 
ters bring to more than 2,000 the number of law professors and 
deans who have announced their opposition to the Bork nomina¬ 
tion. I would like to enter into the record the list of the 1,925 signa¬ 
tures and of the 153 law schools. Following Senator Thurmond’s ad- 


(3349) 



3350 


monition about the taxpayers’ money, I will not ask that every 
letter be reprinted in the record, but they will be available for 
anyone to look at if they wish. 

[The information follows:] 



3351 


LAW SCHOOLS AT WHICH LAW PROFESSORS SIGNED LETTERS 
IN OPPOSITION TO 

ROBERT BORK'S NOMINATIOH TO THE SUPREME COURT * 


University of Akron, C. Blake McDowell Law Center, Ohio 
The University of Alabama School of Law, Alabama 
Albany Law School, Union University, Hew York 

American University, Washington College of Law, Washington, D.C. 
Antioch School of Law, Washington, D.C. 

University of Arizona College of Law, Arizona 
Arizona State University College of Law, Arizona 
University of Arkansas, Fayetteville, School of Law, Arkansas 
University of Arkansas at Little Rock School of Law, Arkansas 
University of Baltimore School of Law, Maryland 
Boston College Law School, Massachusetts 
Boston University School of Law, Massachusetts 
University of Bridgeport School of Law, Connecticut 
Brigham Young University, J. Reuben Clark Law School, Utah 
Brooklyn Law School, New York 

University of California at Berkeley School of Law (Boalt Hall), 
California 

University of California at Davis School of Law, California 
University of California, Hastings College of Law, California 
University of California at Los Angeles (UCLA) School of Law, 
California 

California Western School of Law, California 
Capital University Law School, Ohio 
Case Western Reserve University Law School, Ohio 
University of Chicago Law School, Illinois 
University of Cincinnati College of Law, Ohio 

City University of New York Law School at Queens College, New York 

Cleveland State University, Cleveland-Marshall College of Law, Ohio 

University of Colorado School of Law, Colorado 

Columbia University School of Law, New York 

University of Connecticut School of Law, Connecticut 

Thomas M. Cooley Law School, Michigan 

Cornell Law School, New York 

Cumberland School of Law of Samford University, Alabama 
University of Dayton School of Law, Ohio 
The Delaware Law School, Widener University, Delaware 
University of Denver College of Law, Colorado 
De Paul University College of Law, Illinois 


*Law professors at these schools signed letters in 
opposition to Robert Bork's nomination to the Supreme Court. 

This list is for identification purposes only and is not intended 
to imply a position on the Bork nomination by any school. The 
language of some of the letters varies at a few schools. 


1 



3352 


University of Detroit School of Law, Michigan 
Detroit College of Law, Michigan 
Drake University Law School, Iowa 
Duke University School of Law, North Carolina 
Emory University School of Law, Georgia 
University of Florida, College of Law, Florida 
Florida State University College of Law, Florida 
Franklin Pierce Law Center, New Hampshire 
Georgetown University Law Center, Washington, D.C. 

George Washington University National Law Center, Washington, D.C. 

University of Georgia School of Law, Georgia 

Georgia State University College of Law, Georgia 

Golden Gate University School of Law, California 

Gonzaga University School of Law, Washington 

Hamline University School of Law, Minnesota 

Harvard University Law School, Massachusetts 

University of Hawaii William S. Richardson School of Law, Hawaii 

University of Houston Law Center, Texas 

Howard University School of Law, Washington, D.C. 

University of Idaho College of Law, Idaho 
University of Illinois College of Law, Illinois 
Illinois Institute of Technology, Chicago-Kent College of Law, 
Illinois 

Indiana University at Bloomington School of Law, Indiana 

Indiana University School of Law, Indianapolis, Indiana 

University of Iowa College of Law, Iowa 

University of Kansas School of Law, Kansas 

University of Kentucky College of Law, Kentucky 

Lewis and Clark College, Northwestern School of Law, Oregon 

Louisiana State university Law Center, Louisiana 

University of Louisville School of Law, Kentucky 

Loyola University School of Law, Chicago, Illinois 

Loyola Law School, California 

Loyola University School of Law, New Orleans, Louisiana 
McGeorge School of Law, University of the Pacific, California 
University of Maine School of Law, Maine 
Marquette University Law School, Wisconsin 
John Marshall Law School, Illinois 
University of Maryland School of Law, Maryland 
Memphis State University Cecil C. Humphreys School of Law, 
Tennessee 

Mercer University Law School, Georgia 

University of Miami School of Law, Florida 

University of Michigan Law School, Michigan 

University of Minnesota Law School, Minnesota 

Mississippi College of Law, Mississippi 

University of Mississipppi School of Law, Mississippi 

University of Misssouri-Columbia, School of Law, Missouri 

University of Hissouri-Kansas City, School of Law, Missouri 

William Mitchell College of Law, Minnesota 

University of Montana School of Law, Montana 

University of Nebraska College of Law, Nebraska 


2 



3363 


University of New Mexico School of Law, New Mexico 

State University of New York at Buffalo School of Law, New York 

New York Law School, New York' 

New York University School of Law, New York 
University of North Carolina School of Law, North Carolina 
North Carolina Central University School of Law, North Carolina 
University of North Dakota School of Law, North Dakota 
Northeastern University School of Law, Massachusetts 
Northern Illinois University College of Law, Illinois 
Northern Kentucky University, Salmon P. Chase College of Law, 
Kentucky 

Northwestern University School of Law, Illinois 
Notre Dame Law School, Indiana 
Ohio State University College of Law, Ohio 
Nova University Center for the Study of Law, Florida 
Oklahoma City University School of Law, Oklahoma 
University of Oregon School of Law, Oregon 
Pace University School of Law, New York 
University of Pennsylvania Law School, Pennsylvania 
University of Pittsburgh School of Law, Pennslyvania 
University of Puget Sound School of Law, Washington 
University of Richmond, The T.C. Williams School of Law, Virginia 
Rutgers, The State University of New Jersey School of Law, Camden, 
New Jersey 

Rutgers, The State University of New Jersey, S.I. Newhouse Center 

for Law and Justice, New Jersey 

Saint Louis University School of Law, Missouri 

St. Mary's University of San Antonio School of Law, Texas 

University of San Diego School of Law, California 

University of San Francisco School of Law, Calfornia 

Santa Clara University School of Law, California 

Seton Hall University School of Law, New Jersey 

University of South Carolina School of Law, South Carolina 

University of South Dakota School of Law, South Dakota 

South Texas College of Law, Texas 

University of Southern California Law Center, California 
Southern Illinois University School of Law, Illinois 
Southern Methodist University School of Law, Texas 
Southern University Law Center, Louisiana 
Southwestern University School of Law, California 
Stanford Law School, California 
Suffolk University Law School, Massachusetts 
Syracuse University College of Law, New York 
Temple University School of Law, Pennsylvania 
University of Tennessee College of Law, Tennessee 
The University of Texas School of Law, Texas 

Texas Southern University, Thurgood Marshall School of Law, Texas 

Texas Tech University School of Law, Texas 

Touro College Jacob D. Fuchsberg Law Center, New York 

Tulane University School of Law, Louisiana 

The University of Tulsa College of Law, Oklahoma 

University of Utah College of Law, Utah 


3 



3354 


Valparaiso University School of Lav, Indiana 
Vanderbilt University School of Law, Tennessee 
Vermont Law School, Vermont 

Villanova University School of Law, Pennslyvania 
University of Virginia School of Law, Virginia 
Washburn University School of Law, Kansas 
Washington and Lee University School of Law, Virginia 
University of Washington School of Law, Washington 
Wayne State University Lav School, Michigan 
West Virginia University College of Law, West Virginia 
Western New England College School of Law, Massachusetts 
Whittier College School of Law, California 
Willamette University College of Law, Oregon 

College of William and Mary, Marsha11-Wythe School of Law, Virginia 
University of Wisconsin Law School, Wisconsin 
University of Wyoming College of Law, Wyoming 
Yale Law School, Connecticut 

Yeshiva University, Benjamin N. Cardozo School of Law, New York 


4 



3355 


LAW PROFESSORS WHO SIGHED LETTERS 
ROBERT BORK'S NOMINATION TO THE_SHP8EME - gPBBT* 


Dean Carro, University of Akron, C. Blake McDowell Law Center, 
Ohio 

William Jordan, University of Akron, C. Blake McDowell Law 
Center, Ohio 

Marla Mitchell, University of Akron, C. Blake McDowell Law 
Center, Ohio 


William Andreen, University of Alabama School of Law, Alabama 
Tony Freyer, University of Alabama School of Law, Alabama 
Wythe Holt, University of Alabama School of Law, Alabama 
Norman Singer, University of Alabama School of Law, Alabama 
Norman Stein, University of Alabama School of Law, Alabama 
George Taylor, University of Alabama School of Law, Alabama 
Manning Warren, University of Alabama School of Law, Alabama 


Ira Bloom, Albany Law School, Union University, New York 
Stephen Gottlieb, Albany Law School, Union University, New York 
Bernard Harvith, Albany Law School, Union University, New York 
Katheryn Katz, Albany Law School, Union University, New York 
Susan McLarlane, Albany Law School, Union University, New York 
Lawrence Mitchell, Albany Law School, Union University, New York 
Mary Moses, Albany Law School, Union University, New York 
Jonn Voyd, Albany Law School, Union University, New York 
Kathleen Waits, Albany Law School, Union University, New York 


Susan Bennett, American University, Washington College of Law, 
Washington, D.C, 

James Boyle, American University, Washington College of Law, 
Washington, D.C. 

Barlow Burke, American University, Washington College of Law, 
Washington, D.C. 

Nancy Cook, American University, Washington College of Law, 
Washington, D.C. 


* The inclusion of law school names is for identification 
purposes only and is not intended to imply a position on the Bork 
nomination by any school. Visiting professors are identified by 
the school at which they signed a letter. The language of some 
of the letters varies at a few schools. 


1 



3356 


Robert Dinerstein, American University, Washington College of 
Law, Washington, D.C. 

Greer Goldman, American University, Washington College of Law, 
Washington, D.C. 

Robert Goldman, American University, Washington College of Law, 
Washington, D.C. 

Marie Hager, American University, Washington College of Law, 
Washington, D.C. 

Peter Jaszi, American University, Washington College of Law, 
Washington, D.C. 

Patrick Kehoe, American University, Washington College of Law, 
Washington, D.C. 

Robert Lubic, American University, Washington College of Law, 
Washington, D.C. 

Elliott Milstein, American University, Washington College of Law, 
Washington, D.C. 

Joel Paul, American University, Washington College of Law, 
Washington, D.C. 

Andrew Pike, American University, Washington College of Law, 
Washington, D.C. 

Andrew Popper, American University, Washington College of Law, 
Washington, D.C. 

Nancy Polikoff, American University, Washington College of Law, 
Washington, D.C. 

Paul Rice, American University, Washington college of Law, 
Washington, D.C. 

Ira Robbins, American University, Washington College of Law, 
Washington, D.C. 

Mark Sargent, American University, Washington College of Law, 
Washington, D.C. 

Mark Sargentich, American University, Washington College of Law, 
Washington, D.C. 

Herman Schwartz, American University, Washington College of Law, 
Washington, D.C. 

Ann Shalleck, American University, Washington College of Law, 
Washington, D.C. 

O'Neal Smalls, American University, Washington College of Law, 
Washington, D.C. 

Janet Spragens, American University, Washington College of Law, 
Washington, D.C. 

Robert Vaughn, American University, Washington College of Law, 
Washington, D.C. 

Burton Wechsler, American University, Washington College of Law, 
Washington, D.C. 

Joan Williams, American University, Washington College of Law, 
Washington, D.C. 


Edward Allen, Antioch School of Law, Washington, D.C. 
Shelley Broderick, Antioch School of Law, Washington, D.C. 
Russell Cort, Antioch School of Law, Washington, D.C. 
Michael Diamond, Antioch School of Law, Washington, D.C. 


2 



3357 


Marinda Harpole, Antioch School of Law, Washington, D.C. 
George lacy, Antioch School of Law, Washington, D.C. 


Arthur Andrews, University of Arizona College of Law, Arizona 

Barbara Atwood, University of Arizona College of Law, Arizona 

William Boyd, University of Arizona College of Law, Arizona 
Ronald Cherry, University of Arizona College of Law, Arizona 
Leslie Espinoza, University of Arizona College of Law, Arizona 
Robert Glennon, University of Arizona College of Law, Arizona 

Kenney Hegland, University of Arizona College of Law, Arizona 

Reka Hoff, University of Arizona College of Law, Arizona 
Junius Hoffman, University of Arizona College of Law, Arizona 
Suzanne Rabe, University of Arizona College of Law, Arizona 
James Ratner, University of Arizona College of Law, Arizona 
Theodore Schneyer, University of Arizona College of Law, Arizona 
Thomas Schuessler, University of Arizona College of Law, Arizona 
Andrew Silverman, University of Arizona College of Law, Arizona 
Jane Silverman, University of Arizona College of Law, Arizona 
Roy Space, University of Arizona College of Law, Arizona 
David Wexler, university of Arizona college of Law, Arizona 
Robert Williams, University of Arizona College of Law, Arizona 


Jane Aiken, Arizona State University College of Law, Arizona 
Douglas Blaze, Arizona State University College of Law, Arizona 
Richard Brown, Arizona State University College of Law, Arizona 
Richard Dahl, Arizona State University College of Law, Arizona 
Mark Hall, Arizona State University College of Law, Arizona 
David Kader, Arizona State University College of Law, Arizona 
John Leshy, Arizona State University College of Law, Arizona 
Gary Lowenthal, Arizona State University College of Law, Arizona 
Leigh Price, Arizona State University College of Law, Arizona 
Ralph Spritzer, Arizona State University College of Law, Arizona 
Robert Suggs, Arizona State University College of Law, Arizona 
Fernando Teson, Arizona State University College of Law, Arizona 
Bonnie Tucker, Arizona State University College of Law, Arizona 
Lawrence Weeks, Arizona State University College of Law, Arizona 


Richard Atkinson, University of Arkansas, Fayetteville, School of 
Law, Arkansas 

Carlton Bailey, University of Arkansas, Fayetteville, School of 
Law, Arkansas 

Lonnie Beard, University of Arkansas, Fayetteville, School of 
Law, Arkansas 

Chauncey Brummer, University of Arkansas, Fayetteville, School of 
Law, Arkansas 

Charles Carnes, University of Arkansas, Fayetteville, School of 
Law, Arkansas 

Morton Gitelman, University of Arkansas, Fayetteville, School of 
Law, Arkansas 


3 



3358 


Rafael Guzman, University of Arkansas, Fayetteville, School of 
Law, Arkansas 

Terry Kirkpatrick, University of Arkansas, Fayetteville, School 
of Law, Arkansas 

William Lancaster, University of Arkansas, Fayetteville, School 
of Law, Arkansas 

Robert Leflar, University of Arkansas, Fayetteville, School of 
Law, Arkansas 

Mary Matthews, University of Arkansas, Fayetteville, School of 
Law, Arkansas 

John Watkins, University of Arkansas, Fayetteville, School of 
Law, Arkansas 


John DiPippa, University of Arkansas at Little Rock School of 
Law, Arkansas 

Lynn Foster, University of Arkansas at Little Rock School of Law, 
Arkansas 

Dent Gitchel, University of Arkansas at Little Rock School of 
Law, Arkansas 

Kenneth Gould, University of Arkansas at Little Rock School of 
Law, Arkansas 

Andrew McClurg, University of Arkansas at Little Rock School of 
Law, Arkansas 

Morell Mullins, University of Arkansas at Little Rock School of 
Law, Arkansas 

John Pagan, University of Arkansas at Little Rock School of Law, 
Arkansas 

Glenn Pasvogel, University of Arkansas at Little Rock School of 
Law, Arkansas 

Griffin Stockley, University of Arkansas at Little Rock School of 
Law, Arkansas 


Herbert Bernhardt, University of Baltimore School of Law, 
Baltimore, Maryland 

Richard Bourne, University of Baltimore School of Law, Baltimore, 
Maryland 

Michele Gilligan, University of Baltimore School of Law, 
Baltimore, Maryland 

Emily Greenberg, University of Baltimore School of Law, 

Baltimore, Maryland 

Steven Grossman, University of Baltimore School of Law, 

Baltimore, Maryland 

Robert Lande, University of Baltimore School of Law, Baltimore, 
Maryland 

Kenneth Lasson, University of Baltimore School of Law, Baltimore, 
Maryland 

Rebecca Levi, University of Baltimore School of Law, Baltimore, 
Maryland 

Arnold Rochvarg, University of Baltimore School of Law, 

Baltimore, Maryland 


4 



3359 


Elizabeth Samuels, University of Baltimore School of Law, 
Baltimore, Maryland 

Charles Shafer, University of Baltimore School of Law, Baltimore, 
Maryland 

Stephen Shapiro, University of Baltimore School of Law, 

Baltimore, Maryland 

William Weston, University of Baltimore School of Law, Baltimore, 
Maryland 


Alexis Anderson, Boston College Law School, Massachusetts 
Robert Berry, Boston College Law School, Massachusetts 
Mark Brodin, Boston College Law School, Massachusetts 
Peter Donovan, Boston College Law School, Massachusetts 
Sanford Fox, Boston College Law School, Massachusetts 
Jane Gionfriddo, Boston College Law School, Massachusetts 
Phyllis Goldfarb, Boston College Law School, Massachusetts 
Ruth-Arlene Howe, Boston College Law School, Massachusetts 
Cynthia Lichtenstein, Boston College Law School, Massachusetts 
Reed Loder, Boston College Law School, Massachusetts 
Brian Lutch, Boston College Law School, Massachusetts 
Judith McMorrow, Boston College Law School, Massachusetts 
Zygmunt Plater, Boston College Law School, Massachusetts 
Robert Smith, Boston College Law School, Massachusetts 
Mark Spiegel, Boston College Law School, Massachusetts 
Frank Upham, Boston College Law School, Massachusetts 


Kathryn Abrams, Boston University School of Law, Massachusetts 
Jack Beerman, Boston University School of Law, Massachusetts 
Jane Cohen, Boston University School of Law, Massachusetts 
Eric Green, Boston University School of Law, Massachusetts 
Wendy Kaplan, Boston University School of Law, Massachusetts 
Lois Knight, Boston University School of Law, Massachusetts 
Stanley Koppelman, Boston University School of Law, Massachusetts 
Ira Lupu, Boston University School of Law, Massachusetts 
Frances Miller, Boston University School of Law, Massachusetts 
Eva Nilsen, Boston University School of Law, Massachusetts 
Tracey Maclin, Boston University School of Law, Massachusetts 
Robert Seidman, Boston University School of Law, Massachusetts 
David Seipp, Boston University School of Law, Massachusetts 
Joseph Singer, Boston University School of Law, Massachusetts 
Aviam Soifer, Boston University School of Law, Massachusetts 
Larry Yackle, Boston University School of Law, Massachusetts 


Gary Bahr, University of Bridgeport School of Law, Connecticut 
Terence Benbow, University of Bridgeport School of Law, 
Connecticut 

William Dunlap, University of Bridgeport School of Law, 
Connecticut 


5 



3360 


Robert Farrell, University of Bridgeport School of Law, 
Connecticut 

Mary Ferrari, University of Bridgeport School of Law, Connecticut 

Neal Fiegenson, University of Bridgeport School of Law, 
Connecticut 

Stuart Filler, University of Bridgeport School of Law, 

Connecticut 

Marilyn Ford, University of Bridgeport School of Law, Connecticut 

William Garfinkel, University of Bridgeport School of Law, 
Connecticut 

Charles Heckman, University of Bridgeport School of Law, 
Connecticut 

David King, University of Bridgeport School of Law, Connecticut 

Richard Litvin, University of Bridgeport School of Law, 
Connecticut 

Alexander Meiklejohn, University of Bridgeport School of Law, 
Connecticut 

Karen Peterson, University of Bridgeport School of Law, 
Connecticut 

Toni Robinson, University of Bridgeport School of Law, 

Connecticut 

John Sahl, University of Bridgeport School of Law, Connecticut 

Albert Schmidt, University of Bridgeport School of Law, 
Connecticut 

James Trowbridge, University of Bridgeport School of Law, 
Connecticut 


Jean Burns, Brigham Young University, J. Reuben Clark Law 
School, Utah 

Michael Goldsmith, Brigham Young University, j. Reuben Clark Law 
School, Utah 

Constance Lundberg, Brigham Young University, J. Reuben Clark Law 
School, Utah 


Nancy Fink, Brooklyn Law School, New York 
Phillip Genty, Brooklyn Law School, New York 
Susan Herman, Brooklyn Law School, New York 
Minna Kotkin, Brooklyn Law School, New York 
Bailey Kuklin, Brooklyn Law School, New York 
Michael Madow, Brooklyn Law School, New York 
Gary Minda, Brooklyn Law School, New York 
Elizabeth Schneider, Brooklyn Law School, New York 
Jeffrey Stempel, Brooklyn Law School, New York 


Stephen Barnett, University of California at Berkeley School of 
Law (Boalt Hall), California 

Babette Barton, University of California at Berkeley School of 
Law (Boalt Hall), California 


6 



3361 


Richard Buxbaum, University of California at Berkeley School of 
Law (Boalt Hall), California 

Robert Cole, University of California at Berkeley School of Law 
(Boalt Hall), California 

James Crawford, University of California at Berkeley School of 
Law (Boalt Hall), California 

Malcolm reeley, University of California at Berkeley School of 
Law (Boalt Hall), California 

David Feller, University of California at Berkeley School of Law 
(Boalt Hall), California 

william Fletcher, University of California at Berkeley School of 
Law (Boalt Hall), California 

Richard Jennings, University of California at Berkeley School of 
Law (Boalt Hall), California 

Thomas Jorde, University of California at Berkeley School of Law 
(Boalt Hall), California 

Herma Kay, University of California at Berkeley School of Law 
(Boalt Hall), California 

David Lieberman, University of California at Berkeley School of 
Law (Boalt Hall), California 

Kristin Laker, University of California at Berkeley School of 
Law (Boalt Hall), California 

Sheldon Messinger, University of California at Berkeley School of 
Law (Boalt Hall), California 

Michael Moore, University of California at Berkeley School of 
Law (Boalt Hall), California 

Frank Hewman, University of California at Berkeley School of Law 
(Boalt Hall), California 

Andrea Peterson, University of California at Berkeley School of 
Law (Boalt Hall), California 

Robert Post, University of California at Berkeley School of Law 
(Boalt Hall), California 

Edward Rubin, University of California at Berkeley School of Law 
(Boalt Hall), California 

Joseph Sax, University of California at Berkeley School of Law 
(Boalt Hall), California 

Harry Scheiber, University of California at Berkeley School of 
Law (Boalt Hall), California 

Marjorie Shultz, University of California at Berkeley School of 
Law (Boalt Hall), California 

Jerome Skolnick, University of California at Berkeley School of 
Law (Boalt Hall), California 


Edward Barrett, University of California at Davis School of Law, 
California 

Florian Bartosic, University of California at Davis School of 
Law, California 

Antonia Bernhard, University of California at Davis School of 
Law, California 

Alan Brownstein, University of California at Davis School of Law, 
California 


7 



3362 


Carol Bruch, University of California at Davis School of Law, 
California 

Harrison Dunning, University of California at Davis School of 
Law, California 

Floyd Feeney, University of California at Davis School of Law, 
California 

Susan French, University of California at Davis School of Law, 
California 

Michael Glennon, University of California at Davis School of Law, 
California 

Margaret Johns, University of California at Davis School of Law, 
California 

Leslie Kurtz, University of California at Davis School of Law, 
California 

Pierre Loiseaux, University of California at Davis School of Law, 
California 

Jean Love, University of California at Davis School of Law, 
California 

John Oakley, University of California at Davis School of Law, 
California 

John Poulos, University of California at Davis School of Law, 
California 

Martha West, University of California at Davis School of Law, 
California 


Marsha Cohen, University of California, Hastings College of the 
Law, California 

David Faigman, University of California, Hastings College of the 
Law, California 

Leo Kanowitz, University of California, Hastings College of the 
Law, California 

David Levine, University of California, Hastings College of the 
Law, California 

Leo Martinez, University of California, Hastings College of the 
Law, California 

Calvin Massey, University of California, Hastings College of the 
Law, California 

Harry Prince, University of California, Hastings College of the 
Law, California 

Louis Schwartz, University of California, Hastings College of the 
Law, California 

Kelly Weisberg, University of California, Hastings College of the 
Law, California 

Vivian Wilson, University of California, Hastings College of the 
Law, California 

Keith Wingate, University of California, Hastings College of the 
Law, California 


Richard Abel, University of California at Los Angeles (UCLA) 
School of Law, California 


8 



3363 


Reginald Alleyne, University of California at Los Angeles (UCLA) 
School of Law, California 

Hichael Asimow, University of California at Los Angeles (UCLA) 
School of Law, California 

Jesse Dukeminier, University of California at Los Angeles (UCLA) 
School of Law, California 

William Forbath, University of California at Los Angeles (UCLA) 
School of Law, California 

Carole Goldberg-Ambrose, University of California at Los Angeles 
(UCLA) School of Law, California 

Robert Goldstein, University of California at Los Angeles (UCLA) 
School of Law, California 

Joel Handler, University of California at Los Angeles (UCLA) 
School of Law, California 

William Klein, University of California at Los Angeles (UCLA) 
School of Law, California 

Leon Letwin, University of California at Los Angeles (UCLA) 

School of Law, California 

Daniel Lowenstein, University of California at Los Angeles (UCLA) 
School of Law, California 

Albert Moore, University of California at Los Angeles (UCLA) 
School of Law, California 

Elaine Lustig, University of California at Los Angeles (UCLA) 
School of Law, California 

Phillip Trimble, University of California at Los Angeles (UCLA) 
School of Law, California 

Lucie White, University of California at Los Angeles (UCLA) 

School of Law, California 


Robert Bohrer, California Western School of Law, California 
Arthur Campbell, California Western School of Law, California 
Susan channick, California Western School of Law, California 
Barbara Cox, California Western School of Law, California 
Robert DeKoven, California Western School of Law, California 
Scott Ehrlich, California Western School of Law, California 
Marilyn Ireland, California Western School of Law, California 
Chin Kim, California Western School of Law, California 
Penn Lerblance, California Western School of Law, California 
Janet Motley, California Western School of Law, California 
John Noyes, California Western School of Law, California 
Michael O'Keefe, California western School of Law, California 
Glenn Smith, California Western School of Law, California 
Paul Spiegelman, California Western School of Law, California 
Jan Stiglitz, California Western School of Law, California 


william Bluth, Capital University Law School, Ohio 
Carole Butler, Capital University Law School, Ohio 
Michael Distelhorst, Capital University Law School, Ohio 
Jeffrey Ferriell, Capital University Law School, Ohio 
Ronald Friedman, Capital University Law School, Ohio 


9 



3364 


Robert Goostree, Capital University Law School, Ohio 
Mark Huddy, Capital University Law School, Ohio 
Daniel Kobil, Capital University Law School, Ohio 
Max Kravitz, Capital University law School, Ohio 
Susan Looper-Friedaan, Capital University Law School, Ohio 
Roberta Mitchell, Capital University Law School, Ohio 
Jean Mortland, Capital University Law School, Ohio 
Hayward Reynolds, Capital University Law School, Ohio 
Athomia Steele, Capital University Law school, Ohio 
Lance Tibbies, Capital University Law School, Ohio 
Vincene Verdun, Capital University Law School, Ohio 
Ronald Worley, Capital University Law School, Ohio 


Laura Chisolm, Case Western Reserve University Law School, Ohio 
Ronald Coffey, Case Western Reserve University Law School, Ohio 
Melvyn Durchslag, Case Western Reserve University Law School, 

Ohio 

Lewis Katz, Case Western Reserve University Law School, Ohio 
Juliet Kostritsky, Case Western Reserve University Law School, 
Ohio 

Edward Mearns, Case Western Reserve University Law School, Ohio 
Maxwell Mehlman, Case Western Reserve University Law School, Ohio 
Sidney Picker, Case Western Reserve University Law School, Ohio 
Hugh Ross, Case Western Reserve University Law School, Ohio 
Calvin Sharpe, Case Western Reserve University Law School, Ohio 
Barbara Snyder, Case Western Reserve University Law School, Ohio 


Mary Becker, University of Chicago Law School, Illinois 
James Holzhauer, University of Chicago law School, Illinois 
Dennis Hutchinson, University of Chicago Law School, Illinois 
Larry Kramer, University of Chicago Law School, Illinois 
Stephen Schulhofer, University of Chicago Law School, Illinois 
Daniel Shaviro, University of Chicago Law school, Illinois 
David Strauss, University of Chicago Law School, Illinois 
Alan Sykes, University of Chicago Law School, Illinois 


John Applegate, University of Cincinnati College of Law, Ohio 
William Bell, University of Cincinnati College of Law, Ohio 
Dean Brancher, University of Cincinnati College of Law, Ohio 
Gordon Christenson, University of Cincinnati College of Law, Ohio 
Kenneth Dauschmidt, University of Cincinnati College of Law, Ohio 
Katherine Goldwasser, University of Cincinnati College of Law, 
Ohio 

Bert Lockwood, University of Cincinnati College of Law, Ohio 
Beverly Moran, University of Cincinnati College of Law, Ohio 
Inyeai Ororokuma, University of Cincinnati College of Law, Ohio 
Ronna Schneider, University of Cincinnati College of Law, Ohio 
Joseph Tomain, University of Cincinnati College of Law, Ohio 
Ann Woolhandler, University of Cincinnati College of Law, Ohio 


10 



3365 


Linda Bartlett, City University of New York Law School at Queens 
College, New York 

Barbara Bezdek, City University of New York Law School at Queens 
College, New York 

Mary Bilek, City University of New York Law School at Queens 
College, Hew York 

Beryl Blaustone, City University of New York Law School at Queens 
College, Hew York 

Richard Boldt, City University of New York Law School at Queens 
College, New York 

Susan Bryant, City University of New York Law School at Queens 
College, New York 

Haywood Burns, City University of New York Law School at Queens 
College, New York 

Janet Calvo, City University of New York Law School at Queens 
College, New York 

Susan Carpenter, City University of New York Law School at Queens 
College, New York 

Carlton Clark, City University of New York Law School at Queens 
College, New York 

Rhonda Copelon, City University of New York Law School at Queens 
College, New York 

Linda Dunne, City University of New York Law School at Queens 
College, New York 

John Farago, City University of New York Law School at Queens 
College, New York 

Nan Feyler, City University of New York Law School at Queens 
College, New York 

Dave Fields, City University of New York Law School at Queens 
College, New York 

Deborah Fins, City University of New York Law School at Queens 
College, New York 

Beverly Frazier, City University of New York Law School at Queens 
College, New York 

Victor Goode, City University of New York Law School at Queens 
College, New York 

Sidney Harring, City University of New York Law School at Queens 
College, New York 

Jack Himmelstein, City University of New York Law School at 
Queens College, New York 

Ellen James, City University of New York Law School at Queens 
College, New York 

Conrad Johnson, City University of New York Law School at Queens 
College, New York 

Dinesh Khosla, City University of New York Law School at Queens 
College, New York 

Homer LaRue, City University of New York Law School at Queens 
College, New York 

Howard Lesnick, City University of New York Law School at Queens 
College, New York 

Julie Lim, City University of New York Law School at Queens 
College, New York 


11 



3366 


Constance Mandina, City University of New York Law School at 
Queens College, New York 

Dorothy McCarrick, City University of New York Law School at 
Queens College, New York 

Vanessa Merton, City University of New York Law School at Queens 
College, New York 

Kristian Miccio, City University of New York Law School at Queens 
College, New York 

william Mills, City University of New York Law School at Queens 
College, New York 

Esther Mora, City University of New York Law School at Queens 
College, New York 

Philip Nash, City University of New York Law School at Queens 
College, New York 

Paul O'Neil, City University of New York Law School at Queens 
College, New York 

Daniel Pochoda, City University of New York Law School at Queens 
College, New York 

Naomi Price, City University of New York Law School at Queens 
College, New York 

Merrick Rossein, City University of New York Law School at Queens 
College, New York 

Bettice Scott, City University of New York Law School at Queens 
College, New York 

Belinda Sifford, City University of New York Law School at Queens 
College, New York 

Abbie Smith, City University of New York Law School at Queens 
College, New York 

Patricia Williams, City University of New York Law School at 
Queens College, New York 

Richard Wilson, City University of New York Law school at Queens 
College, New York 

Jean Zorn, City University of New York law School at Queens 
College, New York 


Joan Baker, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

David Bamhizer, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Thomas Buckley, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Robert Catz, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Earl Curry, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Michael Davis, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Elizabeth Dreyfuss, Cleveland State University, Cleveland- 
Marshall college of Law, Ohio 

Joel Finer, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 


12 



3367 


Stephen Gard, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Peter Garlock, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Sheldon Gelman, Cleveland State University, Cleveland-Marshall 
College of law, Ohio 

Louis Geneva, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Jack Guttenberg, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Lynne Henderson, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Barry Kellman, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Marjorie Kornhauser, Cleveland State University, Cleveland- 
Marshall College of Law, Ohio 

Stephan Landsman, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Stephen Lazarus, Cleveland state University, Cleveland-Marshall 
College of Law, Ohio 

Robert Nissenbaum, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Solomon Oliver, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Jane Picker, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Lloyd Snyder, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Steven Steinglass, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Victor Streib, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Janice Toran, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

Frederic White, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio] 

Robert Willey, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 

James Wilson, Cleveland State University, Cleveland-Marshall 
College of Law, Ohio 


Jean Dubofsky, University of Colorado School of Law, Colorado 
Ted Fiflis, University of Colorado School of Law, Colorado 
Steven Heyman, University of Colorado School of Law, Colorado 
David Hill, University of Colorado School of Law, Colorado 
Mark Loewenstein, University of Colorado School of Law, Colorado 
Michael Waggoner, University of Colorado School of Law, Colorado 
Charles Wilkinson, University of Colorado School of Law, Colorado 


Vivian Berger, Columbia University School of Law, New York 


13 



3368 


Mark Bare Tiber g, Columbia University School of Law, New York 
George Berman, Columbia University School of Law, New York 
Lori Damrosch, Columbia University School of Law, New York 
Harold Edgar, Columbia University School of Law, New York 
Richard Gardner, Columbia University School of Law, New York 
Harvey Goldschmid, Columbia University School of Law, New York 
Deborah Greenberg, Columbia University School of Law, New York 
Jack Greenberg, Columbia University School of Law, New York 
Louis Henkin, Columbia University School of Law, New York 
Alfred Hill, Columbia University School of Law, New York 
James Hoover, Columbia University School of Law, New York 
James Liebman, Columbia University School of Law, New York 
Louis Lowenstein, Columbia University School of Law, New York 
Gerard Lynch, Columbia University School of Law, New York 
Arthur Murphy, Columbia University School of Law, New York 
Subha Narasimhan, Columbia University School of Law, New York 
Harriet Rabb, Columbia University School of Law, New York 
Eben Moglen, Columbia University School of Law, New York 
Barbara Schatz, Columbia University School of Law, New York 
Kendall Thomas, Columbia University School of Law, New York 


Robert Bard, University of Connecticut School of Law, Connecticut 

Loftus Becker, University of Connecticut School of Law, 
Connecticut 

Phillip Blumberg, University of Connecticut School of Law, 
Connecticut 

John Brittain, University of Connecticut School of Law, 
Connecticut 

Shirley Bysiewicz, University of Connecticut School of Law, 
Connecticut 

Deborah Calloway, University of Connecticut School of Law, 
Connecticut 

Nicholas Grief, University of Connecticut School of Law, 
Connecticut 

Olimpiad Ioffe, University of Connecticut School of Law, 
Connecticut 

Lewis Kurlantzick, University of Connecticut School of Law, 
Connecticut 

Leonard Orland, University of Connecticut School of Law, 
Connecticut 

Alan Ritter, University of Connecticut School of Law, Connecticut 

Cornelius Scanlon, University of Connecticut School of Law, 
Connecticut 

Michael Sheldon, University of Connecticut School of Law, 
Connecticut 

Eileen Silverstein, University of Connecticut School of Law, 
Connecticut 

James Stark, University of Connecticut School of Law, Connecticut 

Carol Stebbins, University of Connecticut School of Law, 
Connecticut 


14 



3369 


Dennis Stone, University of Connecticut School of Law, 

Connecticut 

Kurt Strasser, University of Connecticut School of Law, 
Connecticut 

Stephen Utz, University of Connecticut School of Law, Connecticut 
Robert Whitman, University of Connecticut School of Law, 
Connecticut 

Marcia Winn, University of Connecticut School of Law, Connecticut 


John Fitzgerald, Thomas M. Cooley Law School, Michigan 
Elliot Glicksman, Thomas M. Cooley Law School, Michigan 
Keith Hey, Thomas M. Cooley Law School, Michigan 
Peter Kempel, Thomas M. Cooley Law School, Michigan 
Dorean Koenig, Thomas M. Cooley Law School, Michigan 
Helen Mickens, Thomas M. Cooley Law School, Michigan 
John Nussbaumer, Thomas M. Cooley Law School, Michigan 
Nora Pasman, Thomas M. Cooley Law School, Michigan 
Philip Prygoski, Thomas M. Cooley Law School, Michigan 
John Rooney, Thomas M. Cooley Law School, Michigan 
Marjorie Russell, Thomas M. Cooley Law School, Michigan 
John Scott, Thomas M. Cooley Law School, Michigan 
Charles Senger, Thomas M. Cooley Law school, Michigan 
William Weiner, Thomas M. Cooley Law School, Michigan 
Georgann Wing, Thomas M. Cooley Law School, Michigan 


Gregory Alexander, Cornell Law School, New York 
Theodore Eisenberg, Cornell Law School, Hew York 
Cynthia Farina, Cornell Law School, New York 
Betsy Fuller, Cornell Law School, New York 
Glenn Galbreath, Cornell Law School, New York 
Richard Geiger, Cornell Law School, New York 
Michael Green, Cornell Law School, New York 
Jane Hammond, Cornell Law School, New York 
Robert Hillman, Cornell Law School, New York 
Sheri Johnson, Cornell Law school, New York 
Anne Lukingbeal, Cornell Law School, New York 
David Lyons, Cornell Law School, New York 
Joanne Miner, Cornell Law School, New York 
Stephen Pepper, Cornell Law School, New York 
Stewart Schwab, Cornell Law School, New York 
David Williams, Cornell Law School, New York 
Susan Williams, Cornell Law School, Hew York 
Charles Wolfram, Cornell Law School, New York 


James Brown, Cumberland School of Law of Samford University, 
Alabama 

Kenneth Manning, Cumberland School of Law of Samford University, 
Alabama 


15 



3370 


Thomas Hagel, University of Dayton School of Law, Ohio 
Allen Sultan, University of Dayton School of Law, Ohio 
Laurence Wohl, University of Dayton School of Law, Ohio 


Francis Catania, The Delaware Law School, widener University, 
Delaware 

Alan Garfield, The Delaware Law School, Widener University, 
Delaware 

Patrick Kelly, The Delaware Law School, Widener University, 
Delaware 

Robert Lipkin, The Delaware Law School, Widener University, 
Delaware 

Jean Macchiaroli, The Delaware Law School, widener University, 
Delaware 

Mary McManamon, The Delaware Law School, Widener University, 
Delaware 

Nathaniel Nichols, The Delaware Law School, Widener University, 
Delaware 

Marjorie Sciulli, The Delaware Law School, Widener University, 
Delaware 


William Beaney, University of Denver College of Law, Colorado 
Sandra Blackstone, University of Denver College of Law, Colorado 
Murray Blumenthal, University of Denver College of Law, Colorado 
Alfred Coco, University of Denver College of Law, Colorado 
Thomas Crandall, University of Denver College of Law, Colorado 
Jeffrey Hartje, University of Denver College of Law, Colorado 
Sheila Hyatt, University of Denver College of Law, Colorado 
Harry Lawson, University of Denver College of Law, Colorado 
John Linn, University of Denver College of Law, Colorado 
Linda Malone, University of Denver College of Law, Colorado 
Lucy Marsh, University of Denver College of Law, Colorado 
Ved Nanda, University of Denver College of Law, Colorado 
George Pring, University of Denver College of Law, Colorado 
Stephen Rench, University of Denver College of Law, Colorado 
Edward Richards, University of Denver College of Law, Colorado 
Howard Rosenberg, University of Denver College of Law, Colorado 
Rodney Stnolla, University of Denver College of Law, Colorado 
Joyce Sterling, University of Denver College of Law, Colorado 
Robert Yegge, University of Denver College of Law, Colorado 


Elliott Abramson, De Paul University College of Law, Illinois 
Susan Bandes, De Paul University College of Law, Illinois 
Leonard Cavise, De Paul University College of Law, Illinois 
Debra Evenson, De Paul University College of Law, Illinois 
Mark Weber, De Paul University College of Law, Illinois 


Jacqueline Hand, University of Detroit School of Law, Michigan 


16 



3371 


Joan Hollinger, University of Detroit School of Law, Michigan 
Alan Saltzman, University of Detroit School of Law, Michigan 
Richard Seid, University of Detroit School of Law, Michigan 


Mario Ceresa, Detroit College of Law, Michigan 
Charles Clarke, Detroit College of Law, Michigan 
Harold Norris, Detroit College of Law, Michigan 
Nicholas Revelos, Detroit College of Law, Michigan 


Susan Catterall, Drake University Law School, Iowa 
Andrea Charlow, Drake University Law School, Iowa 
John Edwards, Drake University Law School, Iowa 
Neil Hamilton, Drake University Law School, Iowa 
Russell Lovell, Drake University Law School, Iowa 
Arthur Ryman, Drake University Law School, Iowa 
Hark Smith, Drake University law School, Iowa 


Jean Adams, Duke University School o£ Law, North Carolina 
Katharine Bartlett, Duke University School of Law, North Carolina 
Lawrence Baxter, Duke University School of Law, North Carolina 
Sara Beale, Duke University School of Law, North Carolina 
Michael Chiorazzi, Duke University School of Law, North Carolina 
James Cox, Duke University School of Law, North Carolina 
Jerome Culp, Duke University School of Law, North Carolina 
Walter Dellinger, Duke University School of Law, North Carolina 
Paul Haagen, Duke University School of Law, North Carolina 
Arthur Larson, Duke University School of Law, North Carolina 
Thomas Metzloff, Duke University School of Law, North Carolina 
Robert Hosteller, Duke University School of Law, North Carolina 
Thomas Rowe, Duke University School of Law, North Carolina 
Christopher Schroeder, Duke University School of Law, North 
Carolina 

Gwynn Swinson, Duke University School of Law, North Carolina 


Howard Abrams, Emory University School of Law, Georgia 
Frank Alexander, Emory University School of Law, Georgia 
Jennifer Arlen, Emory University School of Law, Georgia 
Jack Etheridge, Emory University School of Law, Georgia 
Nathaniel Gozansky, Emory University School of Law, Georgia 
Stanley Joslin, Emory University School of Law, Georgia 
Steve Lubet, Emory University School of Law, Georgia 
Abraham Ordover, Emory University School of Law, Georgia 
Frank vandall, Emory University School of Law, Georgia 
David Webster, Emory University School of Law, Georgia 


James Alfini, Florida State University College of Law, Florida 


17 



3372 


Margaret Baldwin, Florida State University College of Law, 

Florida 

Donna Christie, Florida State University College of Law, Florida 
David Dickson, Florida State University College of Law, Florida 
Patricia Dore, Florida State University College of Law, Florida 
Lawrence George, Florida State University College of Law, Florida 
Steven Gey, Florida State University College of Law, Florida 
Steven Goldstein, Florida State University College of Law, 

Florida 

Gwendolyn Griffith, Florida State University College of Law, 
Florida 

Anthony Herman, Florida State University College of Law, Florida 
Adam Hirsch, Florida State University College of Law, Florida 
Robert Kennedy, Florida State University College of Law, Florida 
John Larson, Florida State University College of Law, Florida 
Robert Laurence, Florida State University College of Law, Florida 
Jarret Oeltjen, Florida State University College of Law, Florida 
David Powell, Florida State University College of Law, Florida 
Mark Seidenfeld, Florida State University College of Law, Florida 
Orin Slagle, Florida State University College of Law, Florida 
Harold Southerland, Florida State University College of Law, 
Florida 

Jack Van Doren, Florida State University College of Law, Florida 
Kenneth Vinson, Florida State University College of Law, Florida 


Ruth Chevion, Franklin Pierce Law Center, Hew Hampshire 
Bruce Friedman, Franklin Pierce Law Center, New Hampshire 
Marcus Hurn, Franklin Pierce Law Center, New Hampshire 
Ellen Musinsky, Franklin Pierce Law Center, New Hampshire 
Sarah Redfield, Franklin Pierce Law Center, New Hampshire 
Arpiar Saunders, Franklin Pierce Law Center, New Hampshire 


Anita Allen, Georgetown University Law Center, Washington, D.C. 
Judith Areen, Georgetown University Law Center, Washington, D.C. 
Jeffrey Bauman, Georgetown University Law Center, Washington, 

D.C. 

Norman Birnbaum, Georgetown University Law Center, Washington, 
D.C. 

Richard Chused, Georgetown University Law Center, Washington, 

D.C. 

Robert Drinan, Georgetown University Law Center, Washington, D.C. 
James Feinerman, Georgetown University Law Center, Washington, 
D.C. 

Emma Jordan, Georgetown University Law Center, Washington, D.C. 
william Eskridge, Georgetown University Law Center, Washington, 
D.C. 

Patricia King, Georgetown University Law Center, Washington, D.C. 
David Koplow, Georgetown University Law Center, Washington, D.C. 
Jane Malmo, Georgetown University Law Center, Washington, D.C. 


18 



3373 


Wallace Mlyniec, Georgetown University Law Center, Washington, 
D.C. 

John Murphy, Georgetown University Center, Washington, D.C. 

Elizabeth Patterson, Georgetown University Law Center, 
Washington,D.C. 

Wendy Perdue, Georgetown University Law Center, Washington, D.C. 

Robert Pitofsky, Georgetown University Law Center, Washington, 
D.C. 

Jill Ramsfield, Georgetown University I^w Center, Washington, 
D.C. 

Susan Ross, Georgetown University Law Center, Washington, D.C. 

Louis Seidman, Georgetown University Law Center, Washington, D.C 

Girardeau Spann, Georgetown University Law Center, Washington, 
D.C. 

Peter Tague, Georgetown University Law Center, Washington, D.C. 

Mark Tushnet, Georgetown University Law Center, Washington, D.C. 

Heathcote Wales, Georgetown University Law Center, Washington, 
D.C. 

Wendy Williams, Georgetown University Law center, Washington, 
D.C. 


Deborah Barthel, George Washington University National Law 
Center, Washington, D.C. 

Cheryl Block, George Washington University National Law Center, 
Washington, D.C. 

Mary Cheh, George Washington University National Law Center, 
Washington, D.C. 

Stephen DelGiudice, George Washington University National Law 
Center, Washington, D.C. 

Carol Izumni, George Washington University National Law Center, 
Washington, D.C. 

Beth Nolan, George Washington University National Law Center, 
Washington, D.C. 

william Painter, George Washington University National Law 
Center, Washington, D.C. 

Leo Romero, George Washington University National Law Center, 
Washington, D.C. 

Jackson Rose, George Washington University National Law Center, 
Washington, D.C. 

Eric Sirulnik, George Washington University National Law Center, 
Washington, D.C. 

Ralph Steinhardt, George Washington University National Law 
Center, Washington, D.C. 

Joan Strand, George Washington University National Law Center, 
Washington, D.C. 

Alice Sullivan, George Washington University National Law Center 
Washington, D.C. 

Elyce Zenoff, George Washington University National Law Center, 
Washington, D.C. 

Luize Zubrow, George Washington University National Law Center, 
Washington, D.C. 


19 



3374 


Milner Bell, University of Georgia School of Law, Georgia 
Larry Blount, University of Georgia School of Law, Georgia 
Ronald Carlson, University of Georgia School of Law,Georgia 
Samuel Davis, University of Georgia School of Law, Georgia 

Bertis Downs, University of Georgia School of Law, Georgia 

Thomas Eaton, University of Georgia School of Law, Georgia 

Paul Kurtz, University of Georgia School of Law, Georgia 
Robert Leavell, University of Georgia School of Law, Georgia 
Sarajane love, University of Georgia School of Law, Georgia 
Julian McDonnell, University of Georgia School of Law, Georgia 
James Ponsoldt, University of Georgia School of Law, Georgia 
Richard Reaves, University of Georgia School of Law, Georgia 
James Smith, University of Georgia School of Law, Georgia 
Maxine Thomas, University of Georgia School of Law, Georgia 
Michael Wells, University of Georgia School of Law, Georgia 
Cathleen Wharton, University of Georgia School of Law, Georgia 
Donald Wilkes, University of Georgia School of Law, Georgia 


James Bross, Georgia State University College of Law, Georgia 
Norman Crandell, Georgia State University College of Law, Georgia 
Anne Emanuel, Georgia State University College of Law, Georgia 
Jodie English, Georgia State University College of Law, Georgia 
Steven Kaminshine, Georgia State University College of Law, 
Georgia 

Kathleen Marcel, Georgia State University College of Law, Georgia 
Charles Marvin, Georgia State University College of Law, Georgia 
Mary Radford, Georgia State University College of Law, Georgia 

Laura Remter, Georgia State University College of Law, Georgia 

Roy Sobelson, Georgia State University College of Law, Georgia 

Patricia Siuta, Georgia State University College of Law, Georgia 
Kathryn Urbonya, Georgia State University College of Law, Georgia 


Robert Calhoun, Golden Gate University School of Law, California 
Morton Cohen, Golden Gate University School of Law, California 
Thomas Goetzl, Golden Gate University School of Law, California 
Lawrence Jones, Golden Gate University School of Law, California 
Judith McKelvey, Golden Gate University School of Law, California 
Leslie Minkus, Golden Gate University School of Law, California 
Anthony Pagano, Golden Gate University School of Law, California 
Bernard Segal, Golden Gate University School of Law, California 
Marc Stickgold, Golden Gate University School of Law, California 
Mark Silverman, Golden Gate University School of Law, California 


Helen Donigan, Gonzaga University School of Law, Washington 
Mark Folmsbee, Gonzaga University School of Law, Washington 
Amy Kelley, Gonzaga University School of Law, Washington 
John Maurice, Gonzaga University School of Law, Washington 
Alan McNeil, Gonzaga University School of Law, Washington 
Jan Rein, Gonzaga University School of Law, Washington 


20 



3375 


Mark Wilson, Gonzaga University School of Law, Washington 


Larry Bakken, Hamline University School of Law, Minnesota 
Leonard Biernat, Hamline University School of Law, Minnesota 
Jennifer Bloom, Hamline University School of Law, Minnesota 
Edwin Butterfoss, Hamline University School of Law, Minnesota 
David Cobin, Hamline University School of Law, Minnesota 
Joseph Daly, Hamline University School of Law, Minnesota 
Cathryn Deal, Hamline University School of Law, Minnesota 
Marie Failinger, Hamline University School of Law, Minnesota 
Susan Kiefer, Hamline University School of Law, Minnesota 
William Martin, Hamline University School of Law, Minnesota 
Barbara McAdoo, Hamline University School of Law, Minnesota 
Angela McCaffrey, Hamline University School of Law, Minnesota 
Mary Morrison, Hamline University School of Law, Minnesota 
James Pielemeier, Hamline University School of Law, Minnesota 
Marilynne Roberts, Hamline University School of Law, Minnesota 
Kenneth Salzberg, Hamline University School of Law, Minnesota 
Michael Scherschligt, Hamline University School of Law, Minnesota 
Steven Swanson, Hamline University School of Law, Minnesota 
Peter Thompson, Hamline University School of Law, Minnesota 
Howard Vogel, Hamline university school of Law, Minnesota 
John Weeks, Hamline University School of Law, Minnesota 
Beverly Wolf, Hamline University School of Law, Minnesota 


Elizabeth Bartholet, Harvard University Law School, Massachusetts 
Derrick Bell, Harvard University Law School, Massachusetts 
Gary Bellow, Harvard University Law School, Massachusetts 
Victor Brudney, Harvard University Law School, Massachusetts 
Susan Estrich, Harvard University Law School, Massachusetts 
william Fisher, Harvard University Law School, Massachusetts 
Gerald Frug, Harvard University Law School, Massachusetts 
Philip Heymann, Harvard University Law School, Massachusetts 
Louis Kaplow, Harvard University Law School, Massachusetts 
David Kennedy, Harvard University Law School, Massachusetts 
Randall Kennedy, Harvard University Law School, Massachusetts 


John Barkai, University of Hawaii William S. Richardson School of 
Law, Hawaii 

Charles Booth, University of Hawaii William S. Richardson School 
of Law, Hawaii 

Addison Bowman, University of Hawaii william S. Richardson School 
of Law, Hawaii 

Ronald Brown, University of Hawaii William S. Richardson School 
of Law, Hawaii 

Williamson Chang, University of Hawaii William S. Richardson 
School of Law, Hawaii 

Jay Dratler, University of Hawaii William S. Richardson School of 
Law, Hawaii 


21 



3376 


Katherine Federle, University of Hawaii William S. Richardson 
school of Law, Hawaii 

Casey Jarman, University of Hawaii William S. Richardson School 
of Law, Hawaii 

Amy Kastely, University of Hawaii William S. Richardson School of 
Lav, Hawaii 

Mari Matsuda, University of Hawaii William S. Richardson School 
of Law, Hawaii 

Richard Miller, University of Hawaii William S. Richardson School 
of Law, Hawaii 

Jon VanDyke, University of Hawaii William S. Richardson School of 
Law, Hawaii 

Eric Yamamoto, University of Hawaii william S. Richardson School 
of Law, Hawaii 


Kevin Dubie, University of Houston Law Center, Texas 
Gilbert Finnell, University of Houston Law Center, Texas 
Sanford Gaines, University of Houston Law Center, Texas 
Thomas Goldham, University of Houston Law Center, Texas 
James Hippard, University of Houston Law Center, Texas 
Elwyn Lee, University of Houston Law Center, Texas 
Peter Linzer, University of Houston Law Center, Texas 
Michael Olivas, University of Houston Law Center, Texas 
Laura Oren, University of Houston Law Center, Texas 
Jordan Paust, University of Houston Law Center, Texas 
Irene Rosenberg, University of Houston Law Center, Texas 
Yale Rosenberg, University of Houston Law Center, Texas 
Daniel Rotenberg, University of Houston Law Center, Texas 
Laura Rothstein, University of Houston Law Center, Texas 
Mark Rothstein, University of Houston Law Center, Texas 
Robert Schuwerk, University of Houston Law Center, Texas 
Robert Soto, University of Houston Law Center, Texas 
William Streng, University of Houston Law Center, Texas 
Barbara White, University of Houston Law Center, Texas 
Stephen Zamora, University of Houston Law Center, Texas 


Loretta Argrett, Howard University School of Law, Washington, 

D.C. 

Sharon Banks, Howard University School of Law, Washington, D.C. 
Isaac Barfield, Howard University School of Law, Washington, D.C. 
Daniel Bernstine, Howard University School of Law, Washington, 
D.C. 

Spencer Boyer, Howard University School of Law, Washington, D.C. 

Marsha Echols, Howard University School of Law, Washington, D.C. 

Henry Jones, Howard University School of Law, Washington, D.C. 
Warner Lawson, Howard University School of Law, Washington, D.C. 

Isiah Leggett, Howard University School of Law, Washington, D.C. 

Oliver Morse, Howard University School of Law, Washington, D.C. 
Michael Newsom, Howard University School of Law, Washington, D.C. 
Laurence Nolan, Howard University School of Law, Washington, D.C. 


22 



3377 


Herbert Reid, Howard University School of Law, Washington, D.C. 
James Robertson, Howard University School of Law, Washington, 
D.C. 

Sherman Rogers, Howard University School of Law, Washington, D.C 
Clay Smith, Howard University School of Law, Washington, D.C. 
Nadelyn Squire, Howard University School of Law, Washington, D.C 
Harold Washington, Howard University School of Law, Washington, 
D.C. 


Dennis Colson, University of Idaho College of Law, Idaho 
Dale Goble, University of Idaho College of Law, Idaho 
Craig Lewis, University of Idaho College of Law, Idaho 
Monique Lillard, University of Idaho College of Law, Idaho 
Myron Schreck, University of Idaho College of Law, Idaho 
Arthur Smith, University of Idaho College of Law, Idaho 


Francis Boyle, University of Illinois College of Law, Illinois 

William Davey, University of Illinois College of Law, Illinois 

Roger Findley, University of Illinois College of Law, Illinois 

Eric Freyfogle, University of Illinois College of Law, Illinois 
Fred Harris, University of Illinois College of Law, Illinois 
Peter Hay, University of Illinois College of Law, Illinois 
Kit Kinports, University of Illinois College of Law, Illinois 
Deborah Merritt, University of Illinois College of Law, Illinois 
Ralph Reisner, University of Illinois College of Law, Illinois 
Laura Reynolds, University of Illinois College of Law, Illinois 
Stephen Ross, University of Illinois College of Law, Illinois 
Elaine Shoben, University of Illinois College of Law, Illinois 


Ralph Brill, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

Stuart Deutsch, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

Molly Lien, Illinois Institute of Technology, Chicago-Kent 
college of Law, Illinois 

Martin Malin, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

Sheldon Nahmod, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

John Pendergrass, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

A ndrea Raven, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

David Rudstein, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

Jeffrey Sherman, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

Joan Steinman, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 


23 



3378 


Margaret Stewart, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

David Thomas, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 

Richard Wright, Illinois Institute of Technology, Chicago-Kent 
College of Law, Illinois 


Douglass Boshkoff, Indiana University at Bloomington School of 
Law, Indiana 

Kevin Brown, Indiana University at Bloomington School of Law, 
Indiana 

Stephen Conrad, Indiana University at Bloomington School of Law, 
Indiana 

Merritt Fox, Indiana University at Bloomington School of Law, 
Indiana 

Ann Gellis, Indiana University at Bloomington School of Law, 
Indiana 

Edwin Greenbaum, Indiana University at Bloomington School of Law 
Indiana 

David Medine, Indiana University at Bloomington School of Law, 
Indiana 

Val Nolan, Indiana University at Bloomington School of Law, 
Indiana 

Lauren Robel, Indiana University at Bloomington School of Law, 
Indiana 

Rebecca Rudnick, Indiana University at Bloomington School of Law 
Indiana 

Thomas Schornhorst, Indiana University at Bloomington School of 
Law, Indiana 

Gene Shreve, Indiana Univers y at Bloomington School of Law, 
Indiana 

Alexander Tanford, Indiana U, versity at Bloomington School of 
Law, Indiana 


Cynthia Adams, Indiana Univei ity School of Law, Indianapolis, 
Indiana 

Thomas Allington, Indiana Uni 'ersity School of Law, Indianapolis 
Indiana 

Edward Archer, Indiana Univer ;ity School of Law, Indianapolis, 
Indiana 

Robert Ellis, Indiana University School of Law, Indianapolis, 
Indiana 

Debra Falender, Indiana Univt :sity School of Law, Indianapolis, 
Indiana 

Paul Galanti, Indiana Univers -,ty School of Law, Indianapolis, 
Indiana 

Helen Garfield, Indiana University School of Law, Indianapolis, 
Indiana 

Harold Greenberg, Indiana University School of Law, Indianapolis 
Indiana 


24 



3379 


William Hodes, Indiana University School of Law, Indianapolis, 
Indiana 

David Leonard, Indiana University School of Law, Indianapolis, 
Indiana 

William Marsh, Indiana University School of Law, Indianapolis, 
Indiana 

Susanah Mead, Indiana University School of Law, Indianapolis, 
Indiana 

David Papke, Indiana University School of Law, Indianapolis, 
Indiana 

Vickie Renfrow, Indiana University School of Law, Indianapolis, 
Indiana 

Joan Ruhtenberg, Indiana University School of Law, Indianapolis, 
Indiana 

Mary Wolf, Indiana University School of Law, Indianapolis, 
Indiana 


David Baldus, University of Iowa College of Law, Iowa 
Patrick Bauer, University of Iowa College of Law, Iowa 
Steven Burton, University of Iowa College of Law, Iowa 
Jonathan Carlson, University of Iowa College of Law, Iowa 
Martha Chamallas, University of Iowa College of Law, Iowa 
Robert Clinton, University of Iowa College of Law, Iowa 
Louis Cox, University of Iowa College of Law, Iowa 
Mary Dudziak, University of Iowa College of Law, Iowa 
Patricia Fetzer, University of Iowa College of Law, Iowa 
William Hines, University of Iowa College of Law, Iowa 
Nicholas Johnson, University of Iowa College of Law, Iowa 
W. Knight, University of Iowa College of Law, Iowa 
Kenneth Kress, University of Iowa College of Law, Iowa 
Carroll Lucht, University of Iowa College of Law, Iowa 
Richard Matasar, University of Iowa College of Law, Iowa 
Barry Matsumoto, University of Iowa College of Law, Iowa 
Reta Noblett-Feld, University of Iowa College of Law, Iowa 
Paul Papak, University of Iowa College of Law, Iowa 
John Reitz, University of Iowa College of Law, Iowa 
Michael Saks, University of Iowa College of Law, Iowa 
Barbara Schwartz, University of Iowa College of Law, Iowa 
Peter Shane, University of Iowa College of Law, Iowa 
John-Mark Stensvaag, University of Iowa College of Law, Iowa 
Serena Stier, University of Iowa College of Law, Iowa 
James Tomkovicz, University of Iowa College of Law, Iowa 
Burns Weston, University of Iowa College of Law, Iowa 
Gerald Wetlaufer, University of Iowa College of Law, Iowa 
Gregory Williams, University of Iowa College of Law, Iowa 
Adrien Wing, University of Iowa College of Law, Iowa 


Kimberley Dayton, University of Kansas School of Law, Kansas 
Phillip DeLaTorre, University of Kansas School of Law, Kansas 
Robert Glicksman, University of Kansas School of Law, Kansas 

25 


88-374 0 - 89-22 



3380 


David Gottlieb, university of Kansas school of Law, Kansas 
Philip Kis3am, University of Kansas School of Law, Kansas 
Richard Levy, University of Kansas School of Law, Kansas 
Peter Schanck, University of Kansas School of Law, Kansas 
Sidney Shapiro, University of Kansas School of Law, Kansas 


John Batt, University of Kentucky College of Law, Kentucky 
Carolyn Bratt, University of Kentucky College of Law, Kentucky 

Alvin Goldman, University of Kentucky College of Law, Kentucky 

Louise Graham, University of Kentucky College of Law, Kentucky 

Martin McMahon, University of Kentucky College of Law, Kentucky 
Paul Oberst, University of Kentucky College of Law, Kentucky 
Sarah Welling, University of Kentucky College of Law, Kentucky 
Donald Winslow, University of Kentucky College of Law, Kentucky 


Paula Abrams, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Edmund Belsheim, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Michael Blumm, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Marilyn Cover, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Lawrence Brown, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Leonard Duboff, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Jennifer Johnson, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Stephen Kanter, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Arthur LaFrance, Lewis and Clark college. Northwestern School of 
Law, Oregon 

Ronald Lansing, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Susan Mandiberg, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Gary Meyers, Lewis and Clark College, Northwestern School of Law, 
Oregon 

Judith Miller, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Peter Nycum, Lewis and Clark College, Northwestern School of Law, 
Oregon 

Barbara Safriet, Lewis and Clark College, Northwestern School of 
Law, Oregon 

Richard Slottee, Lewis and Clark College, Northwestern School of 
Law, Oregon 


26 



3381 


George Armstrong, Louisiana State University Law Center, 

Louisiana 

Christopher Blakesly, Louisiana State University Law Center, 
Louisiana 

Joseph Bockrath, Louisiana State University Law Center, Louisiana 
Melvin Dakin, Louisiana State University Law Center, Louisiana 
John Devlin, Louisiana State University Law Center, Louisiana 
Raymond Diamond, Louisiana State University Law Center, Louisiana 
Lucy McGough, Louisiana State University Law Center, Louisiana 
Glenn Morris, Louisiana State University Law Canter, Louisiana 
Kenneth Murchison, Louisiana State University Law Center, 
Louisiana 

Benjamin Shieber, Louisiana State University Law Center, 

Louisiana 

Eulis Simien, Louisiana State University Law Center, Louisiana 


Leslie Abramson, University of Louisville School of Law, Kentucky 
Barbara Banoff, University of Louisville School of Law, Kentucky 
Kathleen Bean, University of Louisville School of Law, Kentucky 
Catherine Blackburn, University of Louisville School of Law, 
Kentucky 

John Cross, University of Louisville School of Law, Kentucky 
Jacqueline KanovitZ, University of Louisville School of Law, 
Kentucky 

Laurence Knowles, University of Louisville School of Law, 

Kentucky 

David Leibson, University of Louisville School of Law, Kentucky 
Barbara Lewis, University of Louisville School of Law, Kentucky 
David Luria, University of Louisville School of Law, Kentucky 
Richard Nowka, University of Louisville School of Law, Kentucky 
Edwin Render, University of Louisville School of Law, Kentucky 
Robert Stenger, University of Louisville School of Law, Kentucky 
Michele Ubelaker, University of Louisville School of Law, 

Kentucky 

Marlin Volz, University of Louisville School of Law, Kentucky 
Russell Weaver, University of Louisville School of Law, Kentucky 


Christine Cooper, Loyola University School of Law, Chicago, 
Illinois 

Diane Geraghty, Loyola University School of Law, Chicago, 
Illinois 

Alan Gratch, Loyola University School of Law, Chicago, Illinois 
Michael Kaufman, Loyola University School of Law, Chicago, 
Illinois 

Paul Lisnek, Loyola University School of Law, Chicago, Illinois 
John McCormack, Loyola University School of Law, Chicago, 
Illinois 

Jerry Norton, Loyola University School of Law, Chicago, Illinois 
Alan Raphael, Loyola University School of Law, Chicago, Illinois 
Henry Rose, Loyola University School of Law, Chicago, Illinois 


27 



3382 


Allen Shoenberger, Loyola University School of Law, Chicago, 
Illinois 


Robert Benson, Loyola Law School, California 
Terrence Collingsworth, Loyola Law School, California 
Jan Costello, Loyola Law School, California 
Mary-Lynne Fisher, Loyola Law School, California 
Jennifer Friesen, Loyola Law School, California 
Edward Gaffney, Loyola Law School, California 
Victor Gold, Loyola Law School, California 
Charlotte Goldberg, Loyola Law School, California 
Stanley Goldman, Loyola Law School, California 
Sheila Keuhl, Loyola Law School, California 
Richard Hacias, Loyola Law School, California 
Karl Hanheim, Loyola Law School, California 
Therese Maynard, Loyola Law School, California 
Vicki Michel, Loyola Law School, California 
Louis Natali, Loyola Law School, California 
Samuel Pillsbury, Loyola Law School, California 
Dan Schechter, Loyola Law School, California 
Arnold Siegel, Loyola Law School, California 
Lawrence Solum, Loyola Law School, California 
Marcy Strauss, Loyola Law School, California 
Kathryn Tate, Loyola Law School, California 
Kenneth Vogel, Loyola Law School, California 
Ruel Walker, Loyola Law School, California 
Michael Wolfson, Loyola Law School, California 


Evangeline Abriel, Loyola University School of Law, New Orleans 
Louisiana 

Timothy Blake, Loyola University School of Law, New Orleans, 
Louisiana 

Michael Gallagher, Loyola University School of Law, New Orleans 
Louisiana 

Patrick Hugg, Loyola University School of Law, New Orleans, 
Louisiana 

Calvin Johnson, Loyola University School of Law, New Orleans, 
Louisiana 

James Klebba, Loyola University School of Law, New Orleans, 
Louisiana 

Cynthia Lepow, Loyola University School of Law, New Orleans, 
Louisiana 

John Nelson, Loyola University School of Law, New Orleans, 
Louisiana 

Katherine Schwab, Loyola University School of Law, New Orleans, 
Louisiana 

Michael vitiello, Loyola University School of Law, New Orleans, 
Louisiana 


28 



3383 


Thomas Coyne, McGeorge School of Law, University of the Pacific, 
California 

George Gould, McGeorge School of Law, University of the Pacific, 
California 

Lawrence Levine, McGeorge School of Law, University of the 
Pacific, California 

John Sims, McGeorge School of Law, University of the Pacific, 
California 

Michaela White, McGeorge School of Law, University of the 
Pacific, California 


Tybe Brett, University of Maine School of Law, Maine 
Loftus Carson, University of Maine School of Law, Maine 
Orlando Delogu, University of Maine School of Law, Maine 

James Friedman, University of Maine School of Law, Maine 

Ellen Kandoian, University of Maine School of Law, Maine 

Colleen Khoury, University of Maine School of Law, Maine 

Merle Loper, University of Maine School of Law, Maine 
Naira Soifer, University of Maine School of Law, Maine 
William Wells, University of Maine School of Law, Maine 
Melvyn Zarr, University of Maine School of Law, Maine 


Steven Barkan, Marquette University Law School, Wisconsin 
Phoebe Eaton, Marquette University Law School, Wisconsin 
Carolyn Edwards, Marquette University Law School, Wisconsin 
Michael McChrystal, Marquette University Law School, Wisconsin 
Jean Thompson, Marquette University Law School, Wisconsin 
Christine Wiseman, Marquette University Law School, Wisconsin 


Celeste Hammond, John Marshall Law School, Illinois 
Robert Johnston, John Marshall Law School, Illinois 
Allen Kamp, John Marshall Law School, Illinois 
Melvin Lewis, John Marshall Law School, Illinois 
Ronald Smith, John Marshall Law School, Illinois 


Bernard Auerbach, University of Maryland School of Law, Maryland 
Clinton Bamberger, University of Maryland School of law, Maryland 
Christopher Brown, University of Maryland School of Law, Maryland 
Robert Condlin, University of Maryland School of Law, Maryland 
Karen Czapanskiy, University of Maryland School of Law, Maryland 
Everett Goldberg, University of Maryland School of Law, Maryland 
Stanley Herr, University of Maryland School of Law, Maryland 
Andrew King, University of Maryland School of Law, Maryland 
Susan Leviton, University of Maryland School of Law, Maryland 
Michael Millemann, University of Maryland School of Law, Maryland 
Richard North, University of Maryland School of Law, Maryland 
Robert Percival, University of Maryland School of Law, Maryland 
Jana Singer, University of Maryland School of Law, Maryland 


29 



3384 


Harley Weiss, University of Maryland School of Law, Maryland 
Robin West, University of Maryland School of Law, Maryland 
Roger Wolf, University of Maryland School of Law, Maryland 


Janet Richards, Memphis State University Cecil C. Humphreys 
School of Law, Tennessee 


Theodore Blumoff, Mercer University Law School, Georgia 
Leah Chanin, Mercer University Law School, Georgia 
John Cole, Mercer University Law School, Georgia 
Richard Creswell, Mercer University Law School, Georgia 
Deryl Dantzler, Mercer University Law School, Georgia 
Bruce Posnak, Mercer University Law School, Georgia 
Sydney Watson, Mercer University Law School, Georgia 


Terence Anderson, University of Miami School of Law, Florida 
Kenneth Casebeer, University of Miami School of Law, Florida 
Mary Coombs, University of Miami School of Law, Florida 
Westwell Daniels, University of Miami School of Law, Florida 
Richard Fischl, University of Miami School of Law, Florida 
Patrick Gudridge, University of Miami School of Law, Florida 
Jennifer Jaff, University of Miami School of Law, Florida 
James Kainen, University of Miami School of Law, Florida 
Lilli Levi, University of Miami school of Law, Florida 
Dennis Lynch, University of Miami School of Law, Florida 
Stephen Maher, University of Miami School of Law, Florida 
Minnette Massey, University of Miami School of Law, Florida 
George Mundstock, University of Miami School of Law, Florida 
Jeremy Paul, University of Miami School of Law, Florida 
Irwin Stotzky, University of Miami School of Law, Florida 
Joseph Thome, University of Miami School of Law, Florida 

Thomas wills, University of Miami School of Law, Florida 

Bruce Winick, University of Miami School of Law, Florida 

Steven Winter, University of Miami School of Law, Florida 


Alexander Aleinikoff, University of Michigan Law school, Michigan 
Phoebe Eilsworth, University of Michigan Law School, Michigan 
Rebecca Eisenberg, University of Michigan Law School, Michigan 
Bruce Frier, University of Michigan Law School, Michigan 
Thomas Green, University of Michigan Law school, Michigan 
Samuel Gross, University of Michigan Law School, Michigan 
Avery Katz, University of Michigan Law School, Michigan 
Richard Lempert, University of Michigan Law School, Michigan 
Mathias Reimann, University of Michigan Law School, Michigan 
Joseph Weiler, University of Michigan Law School, Michigan 
James B. White, University of Michigan Law School, Michigan 
Christina Whitman, University of Michigan Law School, Michigan 


30 



3385 


Stephen Befort, University of Minnesota Law School, Minnesota 
Karen Burke, University of Minnesota Law School, Minnesota 
Ann Burkhart, University of Minnesota Law School, Minnesota 
Carol Chomsky, University of Minnesota Law School, Minnesota 
Laura Cooper, University of Minnesota Law School, Minnesota 
Richard Prase, University of Minnesota Law School, Minnesota 
Philip Frickey, University of Minnesota Law School, Minnesota 
Robert Levy, University of Minnesota Law School, Minnesota 
Donald Marshall, University of Minnesota Law School, Minnesota 
Robert Morris, University of Minnesota law School, Minnesota 
Steve Nickles, University of Minnesota Law School, Minnesota 
Roger Park, University of Minnesota Law School, Minnesota 
Suzanna Sherry, University of Minnesota Law School, Minnesota 
Gerald Torres, University of Minnesota Law School, Minnesota 
Thomas Waterbury, University of Minnesota Law School, Minnesota 
David Weissbrodt, University of Minnesota Law School, Minnesota 


Craig Callen, Mississippi College School of Law, Mississippi 
Howard Fenton, Mississippi College School of Law, Mississippi 
Lee Hetherington, Mississippi College School of Law, Mississippi 
Richard Hurt, Mississippi College School of Law, Mississippi 
Judith Johnson, Mississippi College School of Law, Mississippi 
Allen Smith, Mississippi College School of Law, Mississippi 


Deborah Bell, University of Mississippi School of Law, 
Mississippi 

John Bradley, University of Mississippi School of Law, 
Mississippi 

Larry Bush, University of Mississippi School of Law, Mississippi 

William Champion, University of Mississippi School of Law, 
Mississippi 

George Cochran, University of Mississippi School of Law, 
Mississippi 

Wesley Cochran, University of Mississippi School of Law, 
Mississippi 

Michal Hoffheimer, University of Mississippi School of Law, 
Mississippi 

Patricia Morgan, University of Mississippi School of Law, 
Mississippi 

William Walker, University of Mississippi School of Law, 
Mississippi 


Peter Davis, University of Missouri-Columbia, School of Law, 
Missouri 

Kenneth Dean, University of Missouri-Columbia, School of Law, 
Missouri 

James Devine, University of Missouri-Columbia, School of law, 
Missouri 


31 



3386 


William Fisch, University of Missouri-Columbia, School of Law, 
Missouri 

William Henning, University of Missouri-Columbia, School of Law, 
Missouri 

Edward Hunvald, University of Missouri-Columbia, School of law, 
Missouri 

Nanette Laughrey, University of Missouri-Columbia, School of Law 
Missouri 

Michael Middleton, University of Missouri-Columbia, School of 
Law, Missouri 

Alfred Neely, University of Missouri-Columbia, School of Law, 
Missouri 

Philip Peters, University of Missouri-Columbia, School of Law, 
Missouri 

Leonard Riskin, University of Missouri-Columbia, School of Law, 
Missouri 

Richard Tyler, University of Missouri-Columbia, School of Law, 
Missouri 

Peter Wiedenbeck, University of Missouri-Columbia, School of Law 
Missouri 


Jack Balkin, University of Missouri-Kansas City, School of Law, 
Missouri 

Corinne Cooper, University of Missouri-Kansas City, School of 
Law, Missouri 

Barbara Glesner, University of Missouri-Kansas City, School of 
Law, Missouri 

Robert Hayman, University of Missouri-Kansas City, School of Law 
Missouri 

Edwin Hood, University of Missouri-Kansas City, School of Law, 
Missouri 

Douglas Linder, University of Missouri-Kansas City, School of 
Law, Missouri 

Joan Mahoney, University of Missouri-Kansas City, School of Law, 
Missouri 

Robert Popper, University of Missouri-Kansas City, School of Law 
Missouri 

John Scurlock, University of Missouri-Kansas City, School of Law 
Missouri 

Ray Warner, University of Missouri-Kansas City, School of Law, 
Missouri 


Mary Dean, william Mitchell College of Law, Minnesota 
Peter Erlinder, william Mitchell College of Law, Minnesota 
Marcia Gelpe, william Mitchell College of Law, Minnesota 
Melvin Goldberg, William Mitchell College of Law, Minnesota 
Douglas Heidenreich, william Mitchell College of Law, Minnesota 
Christine Jones-Baxter, William Mitchell College of Law, 
Minnesota 

Daniel Kleinberger, william Mitchell College of Law, Minnesota 


32 



3387 


Christina Kunz, William Mitchell College of Law, Minnesota 
David Prince, William Mitchell College of Law, Minnesota 
Michael Steenson, William Mitchell College of Law, Minnesota 


Margery Brown, University of Montana School of Lew, Montana 
Bari Burke, University of Montana School of Law, Montana 
Larry Elison, University of Montana School of Law, Montana 
Lou Huff, University of Montana School of Law, Montana 
John Mudd, University of Montana School of Law, Montana 
David Patterson, University of Montana School of Law, Montana 
Albert Stone, University of Montana School of Law, Montana 


Robert Denicola, University of Nebraska College of Law, Nebraska 
Emily Fowler, University of Nebraska College of Law, Nebraska 
Alan Frank, University of Nebraska College of Law, Nebraska 
Richard Harnsberger, University of Nebraska College of Law, 
Nebraska 

Peter Hoffman, University of Nebraska College of Law, Nebraska 
Stephen Kalish, University of Nebraska College of Law, Nebraska 
Craig Lawson, University of Nebraska College of Law, Nebraska 
J. McCombs, University of Nebraska College of Law, Nebraska 
Kevin Ruser, University of Nebraska College of Law, Nebraska 
John Snowden, University of Nebraska College of Law, Nebraska 
Charles Tremper, University of Nebraska College of Law, Nebraska 
Steven willborn, University of Nebraska College of Law, Nebraska 
Sally Wise, University of Nebraska College of Law, Nebraska 


William Dixon, University of New Mexico School of Law, New Mexico 
Willis Ellis, University of New Mexico School of Law, New Mexico 
Garrett Flickinger, University of New Mexico School of Law, New 
Mexico 

Chris Frita, University of New Mexico School of Law, New Mexico 
Svedeen Kelly, University of New Mexico School of Law, New Mexico 
Ann Scales, University of New Mexico School of Law, New Mexico 
Robert Schwartz, University of New Mexico School of Law, New 
Mexico 


Lee Albert, State University of New York at Buffalo School of 
Law, New York 

Dianne Avery, State University of New York at Buffalo School of 
Law, New York 

Robert Berger, state University of New York at Buffalo School of 
Law, New York 

Barry Boyer, State University of New York at Buffalo School of 
Law, New York 

Charles Carr, State University of New York at Buffalo School of 
Law, New York 


33 



3388 


Charles Ewing, State University of New York at Buffalo School of 
Law, New York 

Marjorie Girth, State University of New York at Buffalo School of 
Law, New York 

Ronald Hager, State University of New York at Buffalo School of 
Law, New York 

Philip Halpem, State University of New York at Buffalo School of 
Law, New York 

George Kannar, State University of New York at Buffalo School of 
Law, New York 

Alfred Konefsky, State University of New York at Buffalo School 
of Law, New York 

Janet Lindgren, State University of New York at Buffalo School of 
Law, New York 

Isabel Marcus, State University of New York at Buffalo School of 
Law, New York 

Errol Meidinger, State University of New York at Buffalo School 
of Law, New York 

Rolf Olsen, State University of New York at Buffalo School of 
Law, New York 

Judy Scales-Trent, State University of New York at Buffalo School 
of Law, New York 

John Schlegel, State University of New York at Buffalo School of 
Law, New York 

Robert Steinfeld, State University of New York at Buffalo School 
of Law, New York 

Louis Swartz, State University of New York at Buffalo School of 
Law, New York 

Victor Thuronyi, State University of New York at Buffalo School 
of Law, New York 


Janes Brook, New York Law School, New York 
Eugene Cerruti, New York Law School, New York 
Cathy Glaser, New York Law School, New York 
Lawrence Grosberg, New York Law School, New York 
Stephen Newnan, New York Law School, New York 
Michael Perlin. New York Law school. New York 
Robert Perry, New York Law School, New York 
Joyce Saltalanachia, New York Law School, New York 
Marjorie Silver, New York Law School, New York 


Claudia Angelos, New York University School of Law, New York 
Fred Brown, New York University School of Law, New York 
Oscar Chase, New York University School of Law, New York 
Thonas Christensen, New York University School of Law, New York 
Peggy Davis, New York University School of Law, New York 
Norman Dorsen, New York University School of Law, New York 
Rochelle Dreyfuss, New York University School of Law, New York 
Harry First, New York University School of Law, New York 
Eleanor Fox, New York University School of Law, New York 


34 



3389 


Paula Galowitz, New York University School of Law, New York 
Albert Garretson, New York University School of Law, New York 
Stephen Gillers, New York University School of Law, New York 
Jeffrey Gordon, New York University School of Law, New York 
Randy Hertz, New York University School of Law, New York 
Charles Knapp, New York University School of Law, New York 
Lewis Kornhauser, New York University School of Law, New York 
Sylvia Law, New York University School of Law, New York 
Holly Maguigan, New York University School of Law, New York 
Lynn Martell, New York University School of Law, New York 
Chester Mirsky, New York University School of Law, New York 

Nancy Morawetz, New York University School of Law, New York 

Burt Neuborne, New York University School of Law, New York 
John Peschel, New York University School of Law, New York 
Norman Redlich, New York University School of Law, New York 

Richard Revesz, New York University School of Law, New York 

David Richards, New York University School of Law, New York 

Laura Sager, New York University School of Law, New York 
Leo Schmolka, New York University School of Law, New York 
Michael Schwind, New York University School of Law, New York 
John Sexton, New York University School of Law, New York 
Nadine Strossen, New York University School of Law, New York 
Diane Zimmerman, New York University School of Law, New York 


Walker Blakey, University of North Carolina School of Law, North 
Carolina 

Patricia Bryan, University of North Carolina School of Law, North 
Carolina 

Charles Daye, University of North Carolina School of Law, North 
Carolina 

Jeff Harrison, University of North Carolina School of Law, North 
Carolina 

Thomas Hazen, University of North Carolina School of Law, North 
Carolina 

Donald Homstein, University of North Carolina School of Law, 
North Carolina 

Joseph Kalo, University of North Carolina School of Law, North 
Carolina 

William Murphy, University of North Carolina School of Law, North 
Carolina 

Barry Nakell, University of North Carolina School of Law, North 
Carolina 

Daniel Pollitt, University of North Carolina School of Law, North 
Carolina 

Burnele Powell, University of North Carolina School of Law, North 
Carolina 

Nancy Rhoden, University of North Carolina School of Law, North 
Carolina 

Richard Rosen, University of North Carolina School of Law, North 
Carolina 


35 



3390 


Destin Tracy, University of North Carolina School of Law, North 
Carolina 

William Tumier, University of North Carolina Schooi of Law, 
North Carolina 

Judith Wegner, University of North Carolina School of Law, North 
Carolina 


Cheryl Amana, North Carolina Central University School of Law, 
North Carolina 

Deloris Bomarc, North Carolina Central University School of Law, 
North Carolina 

Albert Broderick, North Carolina Central University School of 
Law, North Carolina 

Frances Cappelletti, North Carolina Central University School of 
Law, North Carolina 

Adrienne Fox, North Carolina Central University School of Law, 
North Carolina 

Allyson Duncan, North Carolina Central University School of Law, 
North Carolina 

Deborah Jefferies, North Carolina Central University School of 
Law, North Carolina 

Irving Joyner, North Carolina Central University School of Law, 
North Carolina 

Monica Kalo, North Carolina Central University School of Law, 
North Carolina 

Judith Kincaid, North Carolina Central University School of Law, 
North Carolina 

Suzanne Leary, North Carolina Central University School of Law, 
North Carolina 

Janice Mills, North Carolina Central University School of Law, 
North Carolina 

Mark Morris, North Carolina Central University School of Law, 
North Carolina 

Gayle Moses, North Carolina Central University School of Law, 
North Carolina 

Johnny Parker, North Carolina Central University School of Law, 
North Carolina 

Thomas Ringer, North Carolina Central University School of Law, 
North Carolina 

Daniel Sampson, North Carolina Central University School of Law, 
North Carolina 

Charles Smith, North Carolina Central University School of Law, 
North Carolina 

Louis Westerfield, North Carolina Central University School of 
Law, North Carolina 

Fred Williams, North Carolina Central University School of Law, 
North Carolina 

Mary Wright-Hunt, North Carolina Central University School of 
Law, North Carolina 


36 



3391 


Alexander Bitt, University of North Dakota School of Law, North 
Dakota 

Patricia Fry, University of North Dakota School of Law, North 
Dakota 

Huth Jenny, University of North Dakota School of Law, North 
Dakota 

Marcia O'Kelly, University of North Dakota School of Law, North 
Dakota 

Larry Spain, University of North Dakota School of Law, North 
Dakota 

Barry Vickrey, University of North Dakota School of Law, North 
Dakota 


Brook Baker, Northeastern University School of Law, Massachusetts 
Judith Brown, Northeastern University School of Law, 

Massachusetts 

Denise Carty-Bennia, Northeastern University School of Law, 
Massachusetts 

Mary Cimcel, Northeastern University School of Law, Massachusetts 
David Hall, Northeastern University School of Law, Massachusetts 
John Monks, Northeastern University School of Law, Massachusetts 
Mary O'Connell, Northeastern University School of Law, 
Massachusetts 

Wendy Parnet, Northeastern University School of Law, 

Massachusetts 


Lisa Aisner, Northern Illinois University College of Law, 

Illinois 

Keith Harrison, Northern Illinois University College of Law, 
Illinois 

Cynthia Hinman, Northern Illinois University College of Law, 
Illinois 

Blair Kauffnan, Northern Illinois University College of Law, 
Illinois 

Peter Mulhem, Northern Illinois University College of Law, 
Illinois 

Jeffrey Parness, Northern Illinois University College of Law, 
Illinois 

Kathleen Patchell, Northern Illinois University College of Law, 
Illinois 

Lawrence Schlam, Northern Illinois University College of Law, 
Illinois 

Joel Swift, Northern Illinois University College of Law, Illinois 

Nina Tarr, Northern Illinois University College of Law, Illinois 


David Elder, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 

Nancy Firak, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 


37 



3392 


Edward Goggin, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 

Gene Krauss, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 

Kamilla Mazanec, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 

Michael Mueller, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 

Ljubomir Nacer, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 

Lowell Schechter, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 

Valerie Zummo, Northern Kentucky University, Salmon P. Chase 
College of Law, Kentucky 


Ian Ayres, Northwestern University School of Law, Illinois 
Robert Burns, Northwestern University School of Law, Illinois 
Anthony D'Amato, Northwestern University School of Law, Illinois 
Jean Dobrer, Northwestern University School of Law, Illinois 
John Elson, Northwestern University School of Law, Illinois 
Edward Feldman, Northwestern University School of Law, Illinois 
Linda Fisher, Northwestern University School of Law, Illinois 
Thomas Geraghty, Northwestern University School of Law, Illinois 
Nancy Gibson, Northwestern University School of Law, Illinois 
Irving Gordon, Northwestern University School of Law, Illinois 
George Grossman, Northwestern University School of Law, Illinois 
John Heinz, Northwestern University School of Law, Illinois 
Mark Heyrman, Northwestern University School of Law, Illinois 
Leslie Jones, Northwestern University School of Law, Illinois 
Lawrence Marshall, Northwestern University School of Law,Illinois 
Conor McAuliffe, Northwestern University School of Law, Illinois 
Leonard Rubinowitz, Northwestern University School of Law, 
Illinois 

Kurt Schwerin, Northwestern University School of Law, Illinois 
Helene Shapo, Northwestern University School of Law, Illinois 


Joseph Bauer, Notre Dame I^w School, Indiana 
Richard Boswell, Notre Dame Law School, Indiana 
Thomas Broden, Notre Dame Law School, Indiana 
Michael Durst, Notre Dame law School, Indiana 
Fernand Dutile, Notre Dame Law School, Indiana 
Barbara Pick, Notre Dame Law School, Indiana 
David Fried, Notre Dame Law School, Indiana 
Roger Jacobs, Notre Dame Law School, Indiana 
Conrad Kellenberg, Notre Dame Law School, Indiana 
Teresa Phelps, Notre Dame Law School, Indiana 
James Seckinger, Notre Dame Law School, Indiana 
Eric Smithburn, Notre Dame Law School, Indiana 


38 



3393 


Daniel Chow, Ohio State University College of Law, Ohio 
Sanford Ellenbogen, Ohio State University College of Law, Ohio 
David Goldberger, Ohio State University College of Law, Ohio 
Sheldon Halpern, Ohio State University College of Law, Ohio 
Lawrence Herman, Ohio State University College of Law, Ohio 
Louis Jacobs, Ohio State University College of Law, Ohio 
Timothy Jost, Ohio State University College of Law, Ohio 
Michael Kindred, Ohio State University College of Law, Ohio 
Joan Krauskopf, Ohio State University College of Law, Ohio 
Stanley Laughlin, Ohio State University College of Law, Ohio 
LeRoy Pemell, Ohio State University College of Law, Ohio 
John Quigley, Ohio State University College of Law, Ohio 
Rhonda Rivera, Ohio State University College of Law, Ohio 
Philip Sorensen, Ohio State University College of Law, Ohio 
Douglas Whaley, Ohio State University College of Law, Ohio 
Charles Wilson, Ohio State University College of Law, Ohio 


John Anderson, Nova University Center for the Study of Law, 
Florida 

Michael Bums, Nova University Center for the Study of Law, 
Florida 

Anthony Chase, Nova University Center for the Study of Law, 
Florida 

Phyllis Coleman, Nova University Center for the Study of Law, 
Florida 

Mike Flynn, Nova University Center for the Study of Law, Florida 

Steven Friedland, Nova University Center for the Study of Law, 
Florida 

Michael Jarvis, Nova University Center for the Study of Law, 
Florida 

Paul Joseph, Nova University Center for the Study of Law, Florida 

Maria Kayanan, Nova University Center for the Study of Law, 
Florida 

Michael Masinter, Nova University Center for the Study of Law, 
Florida 

Howard Messing, Nova University Center for the study of Law, 
Florida 

Marilyn Rose, Nova University Center for the Study of Law, 

Florida 

Joseph Smith, Nova University Center for the Study of Law, 

Florida 


Dennis Arrow, Oklahoma City University School of Law, Oklahoma 
Marjorie Downing, Oklahoma City University School of Law, 

Oklahoma 

Steven Fishman, Oklahoma City University School of Law, Oklahoma 
Michael Gibson, Oklahoma City University School of Law, Oklahoma 
Vicki MacDougall, Oklahoma City University School of Law, 

Oklahoma 

Sterling Silver, Oklahoma City University School of Law, Oklahoma 


39 



3394 


Andrew Alter, University of Oregon School of Law, Oregon 
Michael Axline, University of Oregon School of Law, Oregon 
John Bonine, University of Oregon School of Law, Oregon 
Douglas Branson, University of Oregon School of Law, Oregon 
Donald Brodie, University of Oregon School of Law, Oregon 
Chapin Clark, University of Oregon School of Law, Oregon 
Mary Clayton, University of Oregon School of Law, Oregon 
Charles Finke, University of Oregon School of Law, Oregon 
Caroline Forell, University of Oregon School of Law, Oregon 
Leslie Harris, University of Oregon School of Law, Oregon 
Dennis Hyatt, University of Oregon School of Law, Oregon 
Frank Lacy, University of Oregon school of Law, Oregon 
Mary Lawrence, University of Oregon School of Law, Oregon 
Barney Mason, University of Oregon School of Law, Oregon 
Frederic Merrill, University of Oregon School of Law, Oregon 
Ralph Mooney, University of Oregon School of Law, Oregon 
James O'Fallon, University of Oregon School of Law, Oregon 
George Platt, University o Oregon School of Law, Oregon 
David Schuman, University of Oregon School of Law, Oregon 
Martha Schweitz, University of Oregon School of Law, Oregon 
Nancy Shurtz, University of Oregon School of Law, Oregon 
Susan Swift, University of Oregon School of Law, Oregon 


Barbara Atwell, Pace University School of Law, New York 
Barbara Black, Pace University School of Law, New York 
Jay Carlisle, Pace University School of Law, New York 
Donald Doernberg, Pace University School of Law, New York 
Cecil Forster, Pace University School of Law, New York 
Norman Lichtenstein, Pace University School of Law, New York 
Stuart Madden, Pace University School of Law, New York 
Jeffrey Miller, Pace University School of Law, New York 
Michael Mushlin, Pace University School of Law, New York 
Richard Ottinger, Pace University School of Law, New York 
James Rishman, Pace University School of Law, New York 
Nicholas Robinson, Pace University School of Law, New York 
Barbara Salken, Pace University School of Law, New York 
Prakash Sinha, Pace University School of Law, New York 
Ralph Stein, Pace University School of Law, New York 
Donald Stever, Pace University School of Law, New York 
Harry Subin, Pace University School of Law, New York 
Gayl Westerman, Pace University School of Law, New York 


Regina Austin, University of Pennsylvania Law School, 
Pennsylvania 

Edwin Baker, University of Pennsylvania Law School, Pennsylvania 
Drucilla Cornell, University of Pennsylvania Law School, 
Pennsylvania 

Michael Fitts, University of Pennsylvania Law School, 
Pennsylvania 


40 



3395 


Gory Francione, University of Pennsylvania Law school, 
Pennsylvania 

Robert Gorman, University of Pennsylvania Law School, 

Pennsylvania 

Harry Gutman, University of Pennsylvania Law School, Pennsylvania 

John Honnold, University of Pennsylvania Law School, Pennsylvania 

Seth Kreimer, University of Pennsylvania Law School, Pennsylvania 

Richard Lonsdorf, University of Pennsylvania Law School, 
Pennsylvania 

Bruce Mann, University of Pennsylvania Law School, Pennsylvania 
Gerald Neuman, University of Pennsylvania Law School, 

Pennsylvania 

David Rudovsky, University of Pennsylvania Law School, 
Pennsylvania 

Ralph Smith, University of Pennsylvania Law School, Pennsylvania 
Edmund Spaeth, University of Pennsylvania Law School, 

Pennsylvania 

Susan Sturm, University of Pennsylvania Law School, Pennsylvania 
Clyde Summers, University of Pennsylvania Law School, 

Pennsylvania 


Ronald Brand, University of Pittsburgh School of Law, 

Pennsylvania 

William Brown, University of Pittsburgh School of Law, 
Pennsylvania 

John Burkoff, University of Pittsburgh School of Law, 

Pennsylvania 

Pat Chew, University of Pittsburgh School of Law, Pennsylvania 

Harry Flechtner, University of Pittsburgh School of Law, 
Pennsylvania 

Lawrence Frolik, University of Pittsburgh School of Law, 
Pennsylvania 

Michael Goldberg, University of Pittsburgh School of Law, 
Pennsylvania 

Robert Harper, University of Pittsburgh School of Law, 
Pennsylvania 

Candace Hoke, University of Pittsburgh School of Law, 

Pennsylvania 

Susan Koniak, University of Pittsburgh School of Law, 

Pennsylvania 

Greg Lee, University of Pittsburgh School of Law, Pennsylvania 

Jules Lobel, University of Pittsburgh School of Law, Pennsylvania 

Margaret Mahoney, University of Pittsburgh School of Law, 
Pennsylvania 

Alan Meisel, University of Pittsburgh School of Law, Pennsylvania 

Jennifer Parrish, University of Pittsburgh School of Law, 
Pennsylvania 

Thomas Ross, University of Pittsburgh School of Law, Pennsylvania 

Pamela Samuelson, University of Pittsburgh School of Law, 
Pennsylvania 


41 



3396 


Frederic Schwartz, University of Pittsburgh School of Law, 
Pennsylvania 

Rhonda Wasserman, University of Pittsburgh School of Law, 
Pennsylvania 

Welsh White, University of Pittsburgh School of Law, Pennsylvania 


Marilyn Berger, University of Puget Sound School of Law, 
Washington 

Sheldon Frankel, University of Puget Sound School of Law, 
Washington 

Deborah Maranville, University of Puget Sound School of Law, 
Washington 

Michael Newcity, University of Puget Sound School of Law, 
Washington 

Thomas Richardson, University of Puget Sound School of Law, 
Washington 

Pierre Schlag, University of Puget Sound school of Law, 

Washington 

David Skover, University of Puget Sound School of Law, Washington 

John Strait, University of Puget Sound School of Law, Washington 

John Weaver, University of Puget Sound School of Law, Washington 


Robert Shepherd, University of Richmond, The T.C. Williams School 
of Law, Virginia 


Roger Clark, Rutgers, The State University of New Jersey School 
of Law, Camden, New Jersey 

John Davies, Rutgers, The State University of New Jersey School 
of Law, Camden, New Jersey 

Susan Denbo, Rutgers, The State University of New Jersey School 
of Law, Camden, New Jersey 

Jay Feinman, Rutgers, The State University of New Jersey School 
of Law, Camden, New Jersey 

Ann Freedman, Rutgers, The State University of New Jersey School 
of Law, Camden, New Jersey 

Steven Friedell, Rutgers, The State University of New Jersey 
School of Law, Camden, New Jersey 

N. Hull, Rutgers, The State University of New Jersey School of 
Law, Camden, New Jersey 

Nancy Moore, Rutgers, The State University of New Jersey School 
of Law, Camden, New Jersey 

Rand Rosenblatt, Rutgers, The State University of New Jersey 
School of Law, Camden, New Jersey 

Robert Washburn, Rutgers, The State University of New Jersey 
School of Law, Camden, New Jersey 

Robert Williams, Rutgers, The State University of New Jersey 
School of Law, Camden, New Jersey 


42 



3397 


Alexander Brooks, Rutgers, The State University of New Jersey, 

S.I. Newhouse Center for Law & Justice, New Jersey 
Carlos Garcia-Gutierrez, Rutgers, The State University of New 

Jersey, S.I. Newhouse Center for Law & Justice, New Jersey 
Helen Garten, Rutgers, The state University of New Jersey, S.I. 

Newhouse Center for Law « Justice, New Jersey 
Alan Hyde, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Lav & Justice, New Jersey 
Jonathan Hyman, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Lav ft Justice, New Jersey 
Charles Jones, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law t Justice, New Jersey 
Arthur Kinoy, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law & Justice, New Jersey 
Howard Latin, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law t Justice, New Jersey 
Saul Mendlovitz, Rutgers, The State University of New Jersey, 

S.I. Newhouse Center for Law & Justice, New Jersey 
James Paul, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law t Justice, New Jersey 
John Payne, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law & Justice, New Jersey 
James Pope, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law ft Justice, New Jersey 
Louis Raveson, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law It Justice, New Jersey 
Judith Ritter, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law & Justice, New Jersey 
Patricia Rousseau, Rutgers, The State University of New Jersey, 

S.I. Newhouse Center for Law & Justice, New Jersey 
Nadine Taub, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law & Justice, New Jersey 
George Thomas, Rutgers, The State University of New Jersey, S.I. 

Newhouse Center for Law & Justice, New Jersey 
Paul Tractenberg, Rutgers, The State University of New Jersey, 

S.I. Newhouse Center for Law & Justice, New Jersey 


Herbert Eastman, Saint Louis University School of Law, Missouri 
Barbara Gilchrist, Saint Louis University School of Law, Missouri 
Roger Goldman, Saint Louis University School of Law, Missouri 

Carolyn Jones, Saint Louis University School of Law, Missouri 

Henry Ordower, Saint Louis University School of Law, Missouri 

Gene Schultz, Saint Louis University School of Law, Missouri 
Nicolas Terry, Saint Louis University School of Law, Missouri. 
Jeanne Vatterott, Saint Louis University School of Law, Missouri 
Leland Ware, Saint Louis University School of Law, Missouri 
Michael Wolff, Saint Louis University School of Law, Missouri 


David Dittfurth, St. Mary's University of San Antonio School of 
Law, Texas 


43 



3398 


Laura Berend, University of San Diego School of Law, California 
Roy Brooks, University of San Diego School of Law, California 
Joanne Conaghan, University of San Diego School of Law, 

California 

Lynn Dallas, University of San Diego School of Law, California 
Robert Fellmeth, University of San Diego School of Law, 

California 

Robert Giblin, University of San Diego School of Law, California 
Steven Hartwell, University of San Diego School of Law, 

California 

Walter Heiser, University of San Diego School of Law, California 
Herbert Lazerow, University of San Diego School of Law, 

California 

Grant Morris, University of San Diego School of Law, California 
Virginia Nolan, University of San Diego School of Law, California 
Thomas Penfield, University of San Diego School of Law, 

California 

Theresa Player, University of San Diego School of Law, California 
Virginia Shue, University of San Diego School of Law, California 
Robert Simmons, University of San Diego School of Law, California 
Allen Snyder, University of San Diego School of Law, California 
Jorge Vargas, University of San Diego School of Law, California 
Richard Wharton, University of San Diego School of Law, 

California 

Charles Wiggins, University of San Diego School of Law, 

California 

Paul Wohlmuth, University of San Diego School of Law, California 


Jeffrey Brand, University of San Francisco School of Law, 
California 

John Denvir, University of San Francisco School of Law, 
California 

Trina Grillo, University of San Francisco School of Law, 
California 

Peter Honigsberg, University of San Francisco School of Law, 
California 

Suzanne Mounts, University of San Francisco School of Law, 
California 

Thomas Nazario, University of San Francisco School of Law, 
California 

David Oppenheimer, University of San Francisco School of Law, 
California 

Charles Reich, University of San Francisco School of Law, 
California 

Eldon Reiley, University of San Francisco School of Law, 
California 

Steven Shatz, University of San Francisco School of Law, 
California 

Stephanie Wildman, University of San Francisco School of Law, 
California 


44 



3399 


Richard Zitrin, University of San Francisco School of Law, 
California 


Margabrine Armstrong, Santa Clara University School of Law, 
California 

Jost Baum, Santa Clara University School of Law, California 
Herman Levy, Santa Clara University School of Law, California 
Nancy Millich, Santa Clara University School of Law, California 
Gary Neustadter, Santa Clara University School of Law, California 
John Noble, Santa Clara University School of Law, California 
Carol Sanger, Santa Clara University School of Law, California 
Kandis Scott, Santa Clara University School of Law, California 
Monique Steell, Santa Clara University School of Law, California 
Eric Wright, Santa Clara University School of Law, California 
Pearl Zarpley, Santa Clara University School of Law, California 


Michael Ambrosio, Seton Hall University School of Law, New Jersey 
James Boskey, Seton Hall University School of Law, New Jersey 
Ahmed Bulbulia, Seton Hall University School of Law, New Jersey 
Mark Denbeaux, Seton Hall University School of Law, New Jersey 
Daniel Knickerbocker, Seton Hall University School of Law, New 
Jersey 

Marshall Prettyman, Seton Hall University School of Law, New 
Jersey 

Michael Risinger, Seton Hall University School of Law, New Jersey 
Harvey Sklaw, Seton Hall University School of Law, New Jersey 
Charles Sullivan, Seton Hall University School of Law, New Jersey 
Michael Zimmer, Seton Hall University School of Law, New Jersey 


William McAninch, University of South Carolina School of Law, 
South Carolina 

Eldon Wedlock, University of South Carolina School of Law, South 
Carolina 


Richard Barnes, University of South Dakota School of Law, South 
Dakota 

Dennis Cichon, University of South Dakota School of Law, South 
Dakota 

John Davidson, University of South Dakota School of Law, South 
Dakota 

Martha Davis, University of South Dakota School of Law, South 
Dakota 

Mary Hutton, University of South Dakota School of Law, South 
Dakota 

Mary Jensen, University of South Dakota School of Law, South 
Dakota 

Le Ann La Fave, University of South Dakota School of Law, South 
Dakota 


45 



3400 


Frank Slagle, University of South Dakota School of Law, South 
Dakota 

Charles Thatcher, University of South Dakota School of Law, South 
Dakota 

Robert Ulrich, University of South Dakota School of Law, South 
Dakota 


Sandra DeGraw, South Texas College of Law, Texas 
Helen Jenkins, South Texas College of Law, Texas 
Eugene Jones, South Texas College of Law, Texas 
Randall Kelso, South Texas College of Law, Texas 
Neil McCabe, South Texas College of Law, Texas 
Anne Puckett, South Texas College of Law, Texas 
Buford Terrell, South Texas College of Law, Texas 


Patricia Cain, University of Southern California Law Center, 
California 

Erwin Chemerinsky, University of Southern California Law Canter, 
California 

Marshall Cohen, University of Southern California Law Center, 
California 

William Genego, University of Southern California Law Center, 
California 

Noel Ragsdale, University of Southern California Law Center, 
California 

Charles Weissilberg, University of Southern California Law 
Center, California 


Eugene Basanta, Southern Illinois University School of Law, 
Illinois 

Howard Eisenberg, Southern Illinois University School of Law, 
Illinois 

Peter Goplerud, Southern Illinois University School of Law, 
Illinois 

Edward Kionka, Southern Illinois University School of Law, 
Illinois 

Peter McAllen, Southern Illinois University School of Law, 
Illinois 


William Bridge, Southern Methodist University School of Law, 
Texas 

Linda Eads, Southern Methodist University School of Law, Texas 
Stefan Kreiger, Southern Methodist University School of Law, 
Texas 

Thomas Mayo, Southern Methodist University School of Law, Texas 
Frederick Moss, Southern Methodist University School of Law, 
Texas 


46 



3401 


Richard pierce, southern Methodist University School of Law, 
Texas 

Ellen Pryor, Southern Methodist University School of Law, Texas 

Roark Reed, Southern Methodist University School of Law, Texas 

Paul Rogers, Southern Methodist University School of Law, Texas 

Daniel Shuman, Southern Methodist University School of Law, 

Texas 

Ellen solender, southern Methodist University school of Law, 

Texas 

Charles Terry, Southern Methodist University School of Law, 

Texas 

Elizabeth Thornburg, Southern Methodist University School of Law, 
Texas 

Peter Winship, Southern Methodist University School of Law, 

Texas 


Aaron Harris, Southern University Law Center, Louisiana 
Washington Marshall, Southern University Law Center, Louisiana 
Donald Tate, Southern University Law Center, Louisiana 
Evelyn Wilson, Southern University Law Center, Louisiana 


Linda Bracking, Southwestern University School of Law, California 
Anita Glasco, Southwestern University School of Law, California 
James Kushner, Southwestern University School of Law, California 
Ira Shafiroff, Southwestern University School of Law, California 
Karen Smith, Southwestern University School of Law, California 
Richard Solomon, Southwestern University School of Law, 

California 

Paul Treusch, Southwestern University School of Law, California 


Barbara Babcock, Stanford Law School, California 
William Cohen, Stanford Law School, California 
Janet Cooper, Stanford Law School, California 
Barbara Fried, Stanford Law School, California 
Lawrence Friedman, Stanford Law School, California 
Robert Girard, Stanford Law School, California 
Robert Gordon, Stanford Law School, California 
Thomas Grey, Stanford Law School, California 
Thomas Heller, Stanford Law School, California 
Mark Kelman, Stanford Law School, California 
Charles Lawrence, Stanford Law School, California 
Gerald Lopez, Stanford Law School, California 
Miguel Mendez-Longoria, Stanford Law School, California 
Deborah Rhode, Stanford Law School, California 
David Rosenhan, Stanford Law School, California 
Michael Wald, Stanford Law School, California 
Robert Weisberg, Stanford Law School, California 
Eric Wright, Stanford Law School, California 
Stephen Yeazell, Stanford Law School, California 


47 



3402 


Karen Blum, Suffolk University Law School, Massachusetts 
Eric Blumenson, Suffolk University Law School, Massachusetts 
Stephen Callahan, Suffolk University Law School, Massachusetts 
Victoria Dodd, Suffolk University Law School, Massachusetts 
Nancy Dowd, Suffolk University Law School, Massachusetts 
Thomas Finn, Suffolk University Law School, Massachusetts 
Dwight Golann, Suffolk University Law School, Massachusetts 
Marc Greenbaum, Suffolk University Law school, Massachusetts 
Stephen Hicks, Suffolk University Law School, Massachusetts 
Sarah Landis, Suffolk University Law School, Massachusetts 
Russell Murphy, Suffolk University Law School, Massachusetts 
Richard Perlmutter, Suffolk University Law School, Massachusetts 
Robert Wasson, Suffolk University Law School, Massachusetts 
Timothy Wilton, Suffolk University Law School, Massachusetts 


Robert Anderson, Syracuse University College of Law, New York 
Robert Ashford, Syracuse University College of Law, New York 
William Banks, Syracuse University College of Law, New York 
Leslie Bender, Syracuse University College of Law, New York 
Barbara Burnett, Syracuse University College of Law, New York 
Wilhelmina Cooke, Syracuse University College of Law, New York 
Richard Ellison, Syracuse University College of Law, New York 
Martin Fried, Syracuse University College of Law, New York 
L. Goldie, Syracuse University College of Law, New York 
Richard Goldsmith, Syracuse University College of Law, New York 
Theodore Hagelin, Syracuse University College of Law, New York 

Patricia Hassett, Syracuse University College of Law, New York 

Elijah Huling, Syracuse University College of Law, New York 
Gary Kelder, Syracuse University College of Law, New York 
Robert Koretz, Syracuse University College of Law, New York 
Travis Lewin, Syracuse University College of Law, New York 
Thomas Maroney, Syracuse University College of Law, New York 
David Naylor, Syracuse University College of Law, New York 
Rosemary Pooler, Syracuse University College of Law, New York 
Robert Rabin, Syracuse University College of Law, New York 
Sarah Ramsey, Syracuse University College of Law, New York 
Richard Schwartz, Syracuse University College of Law, New York 

Roderick Surratt, Syracuse University College of Law, New York 

James Weeks, Syracuse University College of Law, New York 
William Wiecek, Syracuse University College of Law, New York 


Marina Angel, Temple University School of Law, Pennsylvania 
Edward Ohlbaum, Temple University School of Law, Pennsylvania 
William Woodward, Temple University School of Law, Pennsylvania 


Otis Cochran, University of Tennessee College of Law, Tennessee 
Neil Cohen, University of Tennessee College of Law, Tennessee 
James Gobert, University of Tennessee College of Law, Tennessee 
Grayfred Gray, University of Tennessee College of Law, Tennessee 


48 



3403 


James Kirby, University of Tennessee College of Law, Tennessee 
Noiva Kofele-Kale, University of Tennessee College of Law, 
Tennessee 

Su3an Kovac, University of Tennessee College of Law, Tennessee 
Jerry Phillips, University of Tennessee College of Law, Tennessee 
Richard Hirtz, University of Tennessee College of Law, Tennessee 


Harold Bruff, The University of Texas School of Law, Texas 
Michael Churgin, The University of Texas School of Law, Texas 
Joseph Dodge, The University of Texas School of Law, Texas 
Mark Gergen, The University of Texas School of Law, Texas 
Robert Hamilton, The University of Texas School of Law, Texas 
Calvin Johnson, The University of Texas School of Law, Texas 

Corwin Johnson, The University of Texas School of Law, Texas 

Douglas Laycock, The University of Texas School of Law, Texas 
Sanford Levinson, The University of Texas School of Law, Texas 
Thomas McGarity, The University of Texas School of Law, Texas 
Roy Mersky, The University of Texas School of Law, Texas 
Jan Patterson, The University of Texas School of Law, Texas 
Scot Powe, The University of Texas School of Law, Texas 
David Rabban, The University of Texas School of Law, Texas 
Paul Rasor, The University of Texas School of Law, Texas 
David Robertson, The University of Texas School of Law, Texas 
John Robertson, The University of Texas School of Law, Texas 

Edward Sherman, The University of Texas School of Law, Texas 

Bea Smith, The University of Texas School of Law, Texas 
Ernest Smith, The University of Texas School of Law, Texas 
Michael Tigar, The University of Texas School of Law, Texas 
James Treece, The University of Texas School of Law, Texas 
Stanley Walker, The University of Texas School of Law, Texas 
Louise Weinberg, The University of Texas School of Law, Texas 
Zapporah Wiseman, The University of Texas School of Law, Texas 


Jesse Bethel, Texas Southern University, Thurgood Marshall School 
of Law, Texas 

Marguerite Butler, Texas Southern University, Thurgood Marshall 
School of Law, Texas 

McKen Carrington, Texas Southern University, Thurgood Marshall 
School of Law, Texas 

James Douglas, Texas Southern University, Thurgood Marshall 
School of Law, Texas 

Lonnie Gooden, Texas Southern University, Thurgood Marshall 
School of Law, Texas 

Eugene Harrington, Texas Southern University, Thurgood Marshall 
School of Law, Texas 

Dannye Holley, Texas Southern University, Thurgood Marshall 
School of Law, Texas 

Thomas Kievan, Texas Southern University, Thurgood Marshall 
School of Law, Texas 


49 



3404 


Catherine Mahern, Texas Southern University, Thurgood Marshall 
School of Law, Texas 

J. Ogilvie, Texas Southern University, Thurgood Marshall School 
of Law, Texas 


Daniel Benson, Texas Tech University School of Law, Texas 
William Casto, Texas Tech University School of Law, Texas 
James Moliterno, Texas Tech University School of Law, Texas 
Frank Newton, Texas Tech University School of Law, Texas 
Rodric Schoen, Texas Tech University School of Law, Texas 
Frank Skillem, Texas Tech University School of Law, Texas 
Robert Weninger, Texas Tech University School of Law, Texas 


Peter Davis, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Howard Glickstein, Touro College Jacob D. Fuchsberg Law Center, 
New York 

Richard Harbus, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Louise Harmon, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Hilary Josephs, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Eileen Kaufman, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Richard Klein, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Bruce Morton, Touro College Jacob D. Fuchsberg Law Center, New 
York 

David Rice, Touro College Jacob D. Fuchsberg Law Center, New York 

Douglas Scherer, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Martin Schwartz, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Rena Seplowitz, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Gary Shaw, Touro College Jacob D. Fuchsberg Law Center, New York 

Barbara Swartz, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Alan Weinstein, Touro College Jacob D. Fuchsberg Law Center, New 
York 

Hazel Weiser, Touro College Jacob D. Fuchsberg Law Center, New 
York 


Thomas Andre, Tulane University School of Law, Louisiana 
Lloyd Bonfield, Tulane University School of Law, Louisiana 
Ruth Colker, Tulane University School of Law, Louisiana 
Robert Force, Tulane University School of Law, Louisiana 
Joel Friedman, Tulane University School of Law, Louisiana 


50 



3405 


Catherine Hancock, Tulane University School of Law, Louisiana 
Oliver Houck, Tulane University School of Law, Louisiana 
Luther McDougal, Tulane University School of Law, Louisiana 
George Strickler, Tulane University School of Law, Louisiana 
Hark Wessman, Tulane University School of Law, Louisiana 


Taunya Banks, University of Tulsa College of Law, Oklahoma 
Chris Blair, University of Tulsa College of Law, Oklahoma 
Marianne Blair, University of Tulsa College of Law, Oklahoma 
Marguerite Chapman, University of Tulsa College of Law, Oklahoma 
Stephen Feldman, University of Tulsa College of Law, Oklahoma 
Judith Finn, University of Tulsa College of Law, Oklahoma 
Linda Lacey, University of Tulsa College of Law, Oklahoma 
Daniel Morrissey, University of Tulsa College of Law, Oklahoma 
Winona Tanaka, University of Tulsa College of Law, Oklahoma 
Raymond Vasser, University of Tulsa College of Law, Oklahoma 


Alfred Emery, University of Utah College of Law, Utah 
Edwin Firmage, University of Utah College of Law, Utah 
John Flynn, University of Utah College of Law, Utah 
Leslie Francis, University of Utah College of Law, Utah 
Lionel Frankel, University of Utah College of Law, Utah 
Terry Kogan, University of Utah College of Law, Utah 
James Leape, University of Utah College of Law, Utah 
William Lockhart, University of Utah College of Law, Utah 
John Martinez, University of Utah College of Law, Utah 
John Morris, University of Utah College of Law, Utah 
Robert Swenson, University of Utah College of Law, Utah 
Lee Teitelbaum, University of Utah College of Law, Utah 
Debora Threedy, University.of Utah College of Law, Utah 


Lawrence Albrecht, Valparaiso University School of Law, Indiana 
Bruce Berner, Valparaiso University School of Law, Indiana 
Robert Blomquist, Valparaiso University School of Law, Indiana 
Ivan Bodensteiner, Valparaiso University School of Law, Indiana 
Paul Brietzke, Valparaiso University School of Law, Indiana 
Philipp Brockington, Valparaiso University School of Law, Indiana 
Charles Ehren, Valparaiso University School of Law, Indiana 
Jack Hiller, Valparaiso University School of law, Indiana 
Carol Kaesebier, Valparaiso University School of Law, Indiana 
Rosalie Levinson, Valparaiso University School of Law, Indiana 
Alfred Meyer, Valparaiso University School of Law, Indiana 
Seymour Moskowitz, Valparaiso University School of Law, Indiana 
Michael Straubel, Valparaiso University School of Law, Indiana 
David Vandercoy, Valparaiso University School of Law, Indiana 
Geri Yonover, Valparaiso University School of Law, Indiana 


Robert Belton, Vanderbilt University School of Law, Tennessee 


51 



3406 


Frank Bloch, Vanderbilt University School of Law, Tennessee 
Barry Friedman, Vanderbilt University School of Law, Tennessee 
Donald Hall, Vanderbilt University School of Law, Tennessee 
Margaret Howard, Vanderbilt University School of Law, Tennessee 
Ann Julius, Vanderbilt University School of Law, Tennessee 
Thomas McCoy, Vanderbilt University School of Law, Tennessee 
David Smith, Vanderbilt University School of Law, Tennessee 


Ben Aliza, Vermont Law School, Vermont 
Richard Brooks, Vermont Law School, Vermont 
Jonathon Chase, Vermont Law School, Vermont 
Stephen Dycus, Vermont Law School, Vermont 
David Firestone, Vermont Law School, Vermont 
Edmund Kellogg, Vermont Law School, Vermont 
Fred Kosnitsky, Vermont Law School, Vermont 
Kenneth Kreiling, Vermont Law School, Vermont 
Stephanie Willbanks, Vermont Law School, Vermont 
Norman Williams, Vermont Law School, Vermont 
Meredith Wright, Vermont Law School, Vermont 


Doris Brogan, Villanova University School of Law, Pennsylvania 
John Cannon, Villanova University School of Law, Pennsylvania 
John Hyson, Villanova University School of Law, Pennsylvania 
Karen Porter, Villanova university School of Law, Pennsylvania 
Anne Poulin, Villanova University School of Law, Pennsylvania 
Nancy Schultz, Villanova University School of Law, Pennsylvania 
Louis Sirico, Villanova University School of Law, Pennsylvania 
Richard Turkington, Villanova University School of Law, 
Pennsylvania 

Annemiek Young, Villanova University School of Law, Pennsylvania 


Richard Balnave, University of Virginia School of Law, Virginia 
Thomas Bergin, University of Virginia School of Law, Virginia 
Nancy Ehrenreich, University of Virginia School of Law, Virginia 
Alex Johnson, University of Virginia School of Law, Virginia 
Michael Klarman, University of Virginia School of Law, Virginia 
Jane Levine, University of Virginia School of Law, Virginia 
Richard Lillich, University of Virginia School of Law, Virginia 
Daniel Ortiz, University of Virginia School of Law, Virginia 
Gary Peller, University of Virginia School of Law, Virginia 
Edward White, University of Virginia School of Law, Virginia 


Michael Barbara, Washburn University School of Law, Kansas 
James Concannon, Washburn University School of Law, Kansas 
Myrl Duncan, Washburn University School of Law, Kansas 
Allen Easley, Washburn University School of Law, Kansas 
Ronald Griffin, Washburn University School of Law, Kansas 
Michael Kaye, Washburn University School of Law, Kansas 


52 



3407 


Liaquat Khan, Washburn University School of Lav, Kansas 

Emily Kofron, Washburn University School of Law, Kansas 

Bruce Levine, Washburn University School of Law, Kansas 

Haney Maxwell, Washburn University School of Law, Kansas 
Banks McDowell, Washburn University School of Law, Kansas 
Sheila Reynolds, Washburn University School of Law, Kansas 
William Rich, Washburn University School of Law, Kansas 
Larry Sager, Washburn University School of Law, Kansas 
Charlene Smith, Washburn University School of Law, Kansas 


William Geimer, Washington and Lee University School of Law, 
Virginia 

Roger Groot, Washington and Lee University School of Law, 
Virginia 

Edward Henneman, Washington and Lee University School of Law, 
Virginia 

Steven Hobbs, Washington and Lee University School of Law, 
Virginia 

Gwen Johnson, Washington and Lee University School of Law, 
Virginia 

Lewis LaRue, Washington and Lee University School of Law, 
Virginia 

Andrew McThenia, Washington and Lee University School of Law, 
Virginia 

David Millon, Washington and Lee University School of Law, 
Virginia 

Brian Murchison, Washington and Lee University School of Law, 
Virginia 

James Phemister, Washington and Lee University School of Law, 
Virginia 

Joan Shaughnessy, Washington and Lee University School of Law, 
Virginia 

Douglas Rendleman, Washington and Lee University School of Law, 
Virginia 


Robert Aronson, University of Washington School of Law, 

Washington 

William Burke, University of Washington School of Law, Washington 
Jane Ellis, University of Washington School of Law, Washington 
Joan Fitzpatrick, University of Washington School of Law, 
Washington 

Robert Fletcher, University of Washington School of Law, 
Washington 

Deborah Greenberg, University of Washington School of Law, 
Washington 

Gregory Hicks, University of Washington School of Law, Washington 
Stewart Jay, University of Washington School of Law, Washington 
Ralph Johnson, University of Washington School of Law, Washington 
John Junker, University of Washington School of Law, Washington 


53 



3408 


Richard Kummert, University of Washington School of Law, 
Washington 

Martha Lester, University of Washington School of Law, Washington 
Arval Morris, University of Washington School of Law, Washington 
John Price, University of Washington School of Law, Washington 
Deborah Strigenz, University of Washington School of Law, 
Washington 

John Sullivan, University of Washington School of Law, Washington 
Lea Vaughn, University of Washington School of Law, Washington 
Louis Wolcher, University of Washington School of Law, 

Washington 


William Burnham, Wayne State University Law School, Michigan 
Kenneth Callahan, Wayne State University Law School, Michigan 
Joshua Dressier, Wayne State University Law School, Michigan 
Beth Eisler, Wayne state University Law school, Michigan 
Janet Findlater, Wayne State University Law School, Michigan 
Gunther Handl, Wayne State University Law School, Michigan 
Otto Hetzel, Wayne State University Law School, Michigan 
Margo Lesser, Wayne State University Law School, Michigan 
Geoffrey Lanning, Wayne State University Law School, Michigan 
Edward Littlejohn, Wayne State University Law School, Michigan 
Lawrence Mann, Wayne State University Law School, Michigan 
Robert Sedler, Wayne State University Law School, Michigan 
Edward Wise, Wayne State University Law School, Michigan 


Gerald Ashdown, West Virginia University College of Law, West 
Virginia 

Marie Ashe, West Virginia University College of Law, West 
Virginia 

Thomas Barton, West Virginia University College of Law, West 
Virginia 

Robert Bastress, West Virginia University College of Law, West 
Virginia 

John Bonsignore, West Virginia University College of Law, West 
Virginia 

Thomas Cady, West Virginia University College of Law, West 
Virginia 

Vincent Cardi, West Virginia University College of Law, West 
Virginia 

Marion Crain-Mountney, West Virginia University College of Law, 
West Virginia 

Charles DiSalvo, West Virginia University College of Law, West 
Virginia 

James Friedberg, West Virginia University College of Law, West 
Virginia 

Jeff Lewin, West Virginia University College of Law, West 
Virginia 

Marjorie McDiarmid, West Virginia University College of Law, West 
Virginia 


54 



3409 


Janes McLaughlin, west Virginia university College of Law, West 
Virginia 

Joan Van Tol, West Virginia University College of Law, West 
Virginia 


Any Cohen, Western Hew England College School of Law, 
Massachusetts 

Diane DeGeiso, Western Hew England College School of Law, 
Massachusetts 

Donald Dunn, Western New England College School of Law, 
Massachusetts 

John Egnal, Western New England College School of Law, 
Massachusetts 

Robert Fleischner, Western New England College School of Law, 
Massachusetts 

Anne Goldstein, Western New England College School of Law, 
Massachusetts 

James Gordon, Western New England College School of Law, 
Massachusetts 

Cathy Jones, Western New England College School of Law, 
Massachusetts 

Amy Kligerman, Western New England College School of Law, 
Massachusetts 

Anne O'Leary, Western New England College School of Law, 
Massachusetts 

Arthur Leavens, Western New England College School of Law, 
Massachusetts 

Bruce Miller, Western New England College School of Law, 
Massachusetts 

Terry Nagel, Western New England College School of Law, 
Massachusetts 

Barry Stern, Western New England College School of Law, 
Massachusetts 

Keith Werhan, Western New England College School of Law, 
Massachusetts 

Arthur Wolf, Western New England College School of Law, 
Massachusetts 


Cindy Carson, Whittier College School of Law, California 
Warren Cohen, Whittier College School of Law, California 
Mary Gale, Whittier College School of Law, California 
Elwood Main, Whittier College School of Law, California 
Denny Haythom, Whittier College School of Law, California 
William Patton, Whittier College School of Law, California 
David Welkowitz, Whittier College School of Law, California 


Robert Art, Willamette University College of Law, Oregon 
Richard Breen, Willamette University College of Law, Oregon 
Claudia Burton, Willamette university College of Law, Oregon 


55 



3410 


Kathy Graham, Willamette University College of Law, Oregon 
Richard Hagedorn, Willamette University College of Law, Oregon 
Bryan Johnston, Willamette University College of Law, Oregon 
Susan Leeson, Willamette University College of Law, Oregon 
Robert Misner, Willamette University College of Law, Oregon 
James Nafziger, Willamette University College of Law, Oregon 
Dean Richardson, Willamette University College of Law, Oregon 
Ross Runkel, Willamette University College of Law, Oregon 
Christopher Simoni, Willamette University College of Law, Oregon 
Carlton Snow, Willamette University College of Law, Oregon 
Robert Stoyles, Willamette University College of Law, Oregon 
Valerie Vollmar, Willamette University College of Law, Oregon 
Michael wise, Willamette University College of Law, Oregon 


Jayne Barnard, College of William and Mary, Marshall-Wythe School 
of Law, Virginia 

Tom Collins, College of william and Mary, Marshall-Wythe School 
of Law, Virginia 

Glenn Coven, College of William and Mary, Marshall-Wythe School 
of Law, Virginia 

Glenn George, College of william and Mary, Marshall-Wythe School 
of Law, Virginia 

Judith Ledbetter, College of William and Mary, Marshall-Wythe 
School of Law, Virginia 

John Lee, College of William and Mary, Marshall-Wythe School of 
Law, Virginia 

John Levy, College of William and Mary, Marshall-Wythe School of 
Law, Virginia 

Gene Nichol, College of William and Mary, Marshall-Wythe School 
of Law, Virginia 


Ann Althouse, University of Wisconsin Law School, Wisconsin 
Richard Bilder, University of Wisconsin Law School, Wisconsin 
Abner Brodie, University of Wisconsin Law School, Wisconsin 
Peter Carstensen, University of Wisconsin Law School, Wisconsin 
Arlen Christenson, University of Wisconsin Law School, Wisconsin 
Carin Clauss, University of Wisconsin Law School, Wisconsin 
Walter Dickey, University of Wisconsin Law School, Wisconsin 
Howard Erlanger, University of Wisconsin Law School, Wisconsin 
William Foster, University of Wisconsin Law School, Wisconsin 
Marc Galanter, University of Wisconsin Law School, Wisconsin 
Herman Goldstein, University of Wisconsin Law School, Wisconsin 
Hendrik Hartog, University of Wisconsin Law School, Wisconsin 
Stephen Herzberg, University of Wisconsin Law School, Wisconsin 
James Hurst, University of Wisconsin Law School, Wisconsin 
James Jones, University of Wisconsin Law School, Wisconsin 
Leonard Kaplan, University of Wisconsin Law School, Wisconsin 
John Kidwell, University of Wisconsin Law School, Wisconsin 

Neil Komesar, University of Wisconsin Law School, Wisconsin 

Lynn Lopucki, University of Wisconsin Law School, Wisconsin 


56 



3411 


James MacDonald, University of Wisconsin Law School, Wisconsin 
Stewart Macaulay, University of Wisconsin Law School, Wisconsin 
Marygold Melli, University of Wisconsin Law School, Wisconsin 
Samuel Mermin, University of Wisconsin Law School, Wisconsin 
Frank Remington, University of Wisconsin Law School, Wisconsin 
Joel Rogers, University of Wisconsin Law School, WisconsinVicki 
Schultz, University of Wisconsin Law School, Wisconsin 
Gerald Thain, University of Wisconsin Law School, Wisconsin 
David Trubek, University of Wisconsin Law School, Wisconsin 
Frank Tuerkheimer, University of Wisconsin Law School, Wisconsin 
June Weisberger, University of Wisconsin Law School, Wisconsin 
William Whitford, University of Wisconsin Law School, Wisconsin 
Zigurds Zile, University of Wisconsin Law School, Wisconsin 


Mary Blackstone, University of Wyoming College of Law, Wyoming 
John Burman, University of Wyoming College of Law, Wyoming 
Marilyn Burman, University of Wyoming College of Law, Wyoming 
Jerome Elkind, University of Wyoming College of Law, Wyoming 
Robert Keiter, University of Wyoming College of Law, Wyoming 
Debra Madsen, University of Wyoming College of Law, Wyoming 
Peter Maxfield, University of Wyoming College of Law, Wyoming 
Catherine Mealey, University of Wyoming College of Law, Wyoming 
Mary Pridgen, University of Wyoming College of Law, Wyoming 
George Rudolph, University of Wyoming College of Law, Wyoming 
Joel Selig, University of Wyoming College of Law, Wyoming 
Mark Squillace, University of Wyoming College of Law, Wyoming 
Ann Stevens, University of Wyoming College of Law, Wyoming 


Harlon Dalton, Yale Law School, Connecticut 
Donald Elliott, Yale Law School, Connecticut 
Lucinda Finley, Yale Law School, Connecticut 


Elizabeth Clark, Yeshiva University, Benjamin N.Cardozo School of 
Law, New York 

Donald Elfenbein, Yeshiva University, Benjamin N. Cardozo School 
of Law, New York 

Arthur Jacobson, Yeshiva University, Benjamin N- Cardozo School 
of Law, New York 

Michel Rosenfeld, Yeshiva University, Benjamin N. Cardozo School 
of Law, New York 

David Rudenstine, Yeshiva University, Benjamin N. Cardozo School 
of Law, New York 

Barry Scheck, Yeshiva University, Benjamin N. Cardozo School of 
Law, New York 

Paul Shupack, Yeshiva University, Benjamin N. Cardozo School of 
Law, New York 

Jonathan Silver, Yeshiva University, Benjamin N. Cardozo School 
of Law, New York 


57 


88-374 0 - 89-23 



3412 


Katherine Stone, Yeshiva University, Benjamin N. Cardozo School 
of Law, New York 

Telford Taylor, Yeshiva University, Benjamin N. Cardozo School of 
Law, New York 

Lawrence Vogelman, Yeshiva University, Benjamin N. Cardozo School 
of Law, New York 

Richard Weisberg, Yeshiva University, Benjamin N. cardozo school 
of Law, New York 


58 



3413 


The Chairman. Now, we, in fact, start the morning with a distin¬ 
guished panel. The first panel of witnesses this morning is here to 
discuss antitrust. I want to thank them for waiting. They were pre¬ 
pared to go last night. Because we could not finish in time last 
night, they agreed to come back this morning. I want to thank 
them very much for putting up with the inconvenience the commit¬ 
tee has caused them. 

The first is the Honorable Robert Abrams, Attorney General of 
the State of New York, a man of great distinction. I will not read 
his whole bio here, but a man whom we are very happy to have 
here; and the Honorable Charles Brown, Attorney General of the 
State of West Virginia and current chair of the Antitrust Commit¬ 
tee of the National Association of Attorneys General; and Dean 
Robert Pitofsky, dean and professor of law at Georgetown Universi¬ 
ty Law Center and former Commissioner of the Federal Trade 
Commission. 

Gentlemen, would you all three stand to be sworn? 

Do you swear that the testimony you are about to give will be 
the truth, the whole truth, and nothing but the truth, so help you 
God? 

Mr. Abrams. I do. 

Mr. Brown. I do. 

Mr. Pitofsky. I do. 

The Chairman. My colleagues will be in and out. We have one of 
those days on the floor of the Senate where there is a great 
number of amendments, and we will be interrupted constantly. 
But, hopefully, we can keep the day flowing and possibly straight 
through lunch, if I can get someone to spell me a little bit here, so 
we can finish the testimony today. 

It is my hope and my goal to finish the public witnesses today 
and to have the transcript printed, the reports finished, so we can 
vote on Tuesday. But we will see how we go. 

Let me ask you again, the closest to the 5-minute rule you can 
stay, we have four elected officials, Attorneys General, Congress 
persons and others to whom we have extended the courtesy of let¬ 
ting them go a little longer, but you would endear yourself to us 
greatly if you kept it at the 5-minute range. 

With that, why do we not begin with you, Bob, General, and 
move from you to your left. 



3414 


TESTIMONY OF A PANEL CONSISTING OF ROBERT ABRAMS, 
CHARLES BROWN, AND ROBERT PITOFSKY 

Mr. Abrams. Thank you very much, Senator. I have submitted 
for the record the full transcript of my remarks, and I will con¬ 
dense them this morning. 

Although I presently serve as president-elect of the National As¬ 
sociation of Attorneys General and have recently completed a 3- 
year term as chairman of that association’s antitrust committee, 
the views that I express here today are strictly my own. 

Antitrust, the field in which Judge Bork has written extensively 
and authored several recent judicial opinions, offers an excellent 
insight into the cl aims of those who assert that he is a consistent 
advocate of judicial restraint. This claim is not supported by Judge 
Bork’s antitrust record: neither in his scholarly writings where he 
has urged the courts to refuse to enforce certain antitrust statutes 
and to overrule many Supreme Court decisions in the antitrust 
area; nor in his decisions as a judge where he has reached far 
beyond the issues before him to propose a radical restructuring of 
long-standing principles of antitrust enforcement. 

It should interest this committee to reflect on Judge Bork’s view 
of Congress’s role in developing antitrust policy. He has asserted 
that Congress is, and now I quote his own words, “institutionally 
incapable of the sustained, rigorous, and consistent thought that 
the fashioning of a rational antitrust policy requires.” 

He has further stated that the Supreme Court’s “obligation to re¬ 
spond to the will of Congress on antitrust matters is an important 
and perhaps decisive institutional handicap, hindering its effort to 
make sensible law.” 

Supreme Court precedent on antitrust is also worthy of little def¬ 
erence in Judge Bork's view. He regards the landmark antitrust 
decisions of this century as wrong, and he ridicules the eminent 
Justices who authored those opinions. 

Having essentially dismissed the views of Congress and the Su¬ 
preme Court in the antitrust arena, Judge Bork proceeds to set 
forth his own view. He adopts a narrow standard which he states is 
the only legitimate goal of the antitrust laws, that of maximizing 
consumer welfare. This goal sounds perfectly reasonable, but upon 
examination, it deprives the antitrust laws of any of the political or 
social content written into them by the Congress. 

It is necessary to understand what Judge Bork means by his 
term “consumer welfare” in order to understand how far his anti¬ 
trust views depart from established law. At the heart of the matter 
is his peculiar and artificial definition of the term “consumer.” In 
his view, corporations, even monopolists and price-fixers, are con¬ 
sumers, just as are the individual citizens who buy products in the 
marketplace. 

Consumer welfare thus becomes, in his words, “the level of soci¬ 
ety’s total wealth,” and the only goal of antitrust enforcement, in 
Judge Bork’s view, is to prevent restriction of the total output of 
goods and services. 

Cartels or even monopolies are perfectly acceptable in Judge 
Bork’s view as long as they do not cause restrictions in industrial 
output. 



3415 


The theory guts the principal goal of the framers of the Sherman 
Act of 1890, which was to protect ordinary citizens from the power 
of monopolists and price-fixers to extract exorbitant prices from 
them. For Judge Bork, such a transfer of wealth from the purchas¬ 
ers of products to monopolists and price-fixers is merely a “shift in 
income between two classes of consumers/’ as he puts it, which 
does not lessen total wealth; and a decision about it could only rest, 
in his words, “on tenuous moral grounds.” 

Judge Bork’s revision of legislative meaning and history is even 
less plausible when it is applied to the Clayton Act and succeeding 
antitrust statutes whose political, social and economic goals were 
even more clearly articulated. 

The incipiency standard of the Clayton Act, aimed at curbing 
anti-competitive practices before they lead to oligopoly, is, to Judge 
Bork, nothing less than an “anti-competitive virus, his words. 

The Celler-Kefauver Amendments of 1950 represent to Judge 
Bork “a jumble of half-digested notions and mythologies.” 

Turning to more recent legislation, Judge Bork has described the 
Hart-Scott-Rodino Act of 1976 as effecting “a destruction of nation¬ 
al wealth not compensated by any social gain.” 

Of course, Judge Bork is entitled to have his opinion concerning 
the wisdom of these laws, but he takes the next improper step of 
advocating that courts should simply refuse to enforce them. He 
asks, for example, whether courts can rule that vertical mergers do 
not harm competition when Congress has said that they do. And he 
answers, “The issue is not free from doubt, but I think the better 
answer is yes.” 

His supporters may argue that the views outlined so far repre¬ 
sent only Bork the scholar and not Bork the judge. Judge Bork’s 
limited antitrust record on the court of appeals does not support 
this alleged dichotomy. Judge Bork’s antitrust opinions display an 
eagerness to depart from the facts of the case at hand to expound 
upon his scholarly theories. 

For example, in the 1986 Neumann case, Judge Bork took the oc¬ 
casion to expound his theories on predatory pricing and horizontal 
price-fixing. There were no such claims in the case, and on both 
topics Judge Bork departed from Supreme Court precedent. 

In the 1986 Rothery decision, Judge Bork turned a straightfor¬ 
ward case calling for a simple affirmance into a forum for expound¬ 
ing most of his mayor antitrust themes. In the Rothery opinion, 
Judge Bork made the following pronouncements: 

He adopted a rule of per se legality for boycotts by firms without 
market power, contrary to a 1985 Supreme Court decision; 

He reminded us that his concept of “consumer welfare” was the 
policy goal of the Sherman Act and that efficiency was the only 
relevant standard; 

He rejected Supreme Court and D.C. Circuit precedents mandat¬ 
ing a rule of reason balancing approach; 

He stated that even if balancing were appropriate, it should be 
based on calculations of market share rather than actual market 
effects, contrary to the position taken by the U.S. Supreme Court 
the very day before in Indiana Federation of Dentists. 

In her concurring opinion in Rothery, Judge Patricia Wald 
argued that a simple affirmance was in order and implied that 



3416 


Judge Bork’s opinion was excessive, asserting principles of law at 
variance with important precedents. 

In conclusion, a fundamental role of the Supreme Court in our 
constitutional system of government has been the protection of in¬ 
dividual rights against the arbitrary and unjust exercise of power 
by large institutions. In antitrust, Judge Bork sees no such role for 
the Court. 

If you believe, as many in our nation do, that the antitrust laws 
serve as the Magna Carta of the free enterprise system, then you 
must view the realization of Judge Bork’s antitrust agenda as a 
preventable tragedy. 

But I think we all must agree that if such a monumental change 
in the law is to occur, it should only occur in our system of govern¬ 
ment as the result of a clear act of legislative will. Because Judge 
Bork would devote himself to advancing his own agenda in clear 
disregard of the will of Congress, I urge you to reject his nomina¬ 
tion to the Supreme Court. 

[The statement of Mr. Abrams follows:] 



3417 


STATEMENT OF 

ROBERT ABRAMS 

NEW YORK STATE ATTORNEY GENERAL 

BBFORE THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

CONCERNING 

THE NOMINATION OF JUDGE ROBERT BORA 
TO BE ASSOCIATE JUSTICE Or THE 
SUPREME COURT 

SEPTEMBER 29, 1987 



3418 


Mr. Chairman, Senator Thurmond and member* of the Committee. 
Thank you for thla opportunity to teatlfy on Judge Bork’s 
nomination to be an Associate Justice of the 
Supreme Court. 

1 begin with a disclaimer. Although I presently serve as 
President-Elect of the National Association of Attorneys General 
and recently completed a two year term as Chairman of that 
Association's Antitrust Committee, I testify today only for 
myself. 

I am the primary enforcer of New York's antitrust law and 
also reprasant my stats, and Its natural person citixens in 
federal antitrust litigation, x 

1 recently coordinated the filing of 37 federal antitrust 
suits by stats attorneys genaral against ths Minolta Corporation 
for an allegad vertical price-fixing conspiracy and successfully 
settled these suits on behalf of hundreds of thousands of 
consumers. I mention this only because Judge Bork has flatly 
stated that vertical price-fixing is beneficial to consumers, and 

should nsver be illegal and that the 76 year old precedent in Pr. 

2 

Miles which makes vertical price-fixing per ae unlawful, may 
properly be 'abandoned by the Supreme Court.* 3 This explicit 


X 15 O.S.C. $ 15c 
2 

Dr^Miles Medloal Co. v. John D. Park * Sons Co. . 220 U.S. 

3 R. Bork, The Antltruat Paradox 296 (1976). Hereinafter 
referred to aa "Paradox.* 



3419 


disagreement over vertical price-fixing may be one reason why 
Judge Bork ii ’dubious* about giving antitrust enforcement 
authority to state attorneys general. Re stated that the 
Hart-Scott-Rodino Act of 1976, which conferred parens patriae 
antitrust jurisdiction on the attorneys general,affected a 
"destruction of national wealth (not) compensated by any social 
gain.* 4 

Judge Bork‘a reservations about state attorneys general 
extend to nearly every other enforcer of the laws and nearly 
every Supreme Court Justice who has interpreted them. But Judge 
Bork reserves his harshest criticism for Congress which he hsa 
termed “institutionally incapable of the sustained, rigorous and 
consiatent thought that the fashioning of a rational antitrust 
policy requires,"^ Ha has also stated that *the Supreme Court 
labors under important and perhaps decisive institutional 
handicaps in its effort to make sensible law. it may sound 
perverse to describe the Court's obligation to respond to the 
will of Congress as an institutional handicap, but in a very real 
sense it is.* 6 

If Judge Bork's view prevails, most of the antitrust law 
established during the last century will be abandoned, and the 
will of Congress frustrated. To understand both the magnitude of 


^Paradox 6. 
Paradox 412. 
^ Paradox 409. 


- 2 - 



3420 


this revision and tha method by which Judge Bork has proposed to 
achieve it, one must understand tha single 'legitimate* goal 
which he allows to the law, the goal of maximizing 'consumer 
welfare.* Pew people realize that Judge Bork has made this 
phrase 'consumer welfare* a tern of art measured by two 
components, productive and allocative efficiency. This is highly 
technical stuff of which not a single member of the highly 
populist Cengreaa which enacted the Sherman hot in’1890 had the 
alighteet inkling (nor any economists at that time], nor did any 
of the Cengreeeea which supplemented the antitrust laws in 1914, 
1936 and 1950. It would astound them that praventing restricted 
output was their sole concern when enacting these laws. Under 
Judge Bork's definition of ’consumer welfare* - monopolists, 
price-fixers and cartels are consumers as are the people who buy 
goods from those entities. 7 Furthermore, the so-called income 
redistribution from the buyer to the price-fixer or monopoliet, 
which occurs when it raises price above the competitive level, ia 
totally diaregerded In the Bork 'consumer welfare* modal. Judge 
Bork has reasoned that this la merely *a shift in income between 
two classes of consumers (which) does not lessen total waalth, 
and a decision about It ... could only rest upon tenuous moral 

ft 

ground.* However tenuous morally. Senator Sherman and his 
colleagues claarly did make this choice. The Sherman Act waa 


7 Paradox 110. 
6 Paradox 110-11. 


- 3 - 




3421 


priiMrily aimed at preventing the extortion of income from buyer* 
9 

by monopolists. 

Once thi* construct of "consuasr welfare* i* set up a* th* 
only 'legitimate goal of antitrust* Judge Bork's dispatch of 
legislative will and precedent flows naturally, because the only 
ill which th# law stay "properly* address is restricted output. 
Thus, Dr. Ml^ee . the 1911 decision authored by Justice 
Charles Evans Hughes 'must be rejected,* even in the face of the 
Congressional repeal of fair trade laws, which affirmed 
Congressional will on this subject.* 0 Judge Bork considers such 
action proper becausa h* statas that *ths Sherman Act (is) not a 
set of speoific rules, still less a body of preesdsnt, but s 
direction to enforce the law's rationale. Precedent 1* not 
ultimately controlling; economic argument is.■** 

However, even if an antitrust court were limited to 
conducting en economic inquiry, and it is not , in any such 
Inquiry there are many choices to be made about which economic 
factors to weigh. Por example, Judge Bork has excluded from his 
"consumer welfare* formula any consideration of the wealth 
transfer affects of monopoly pricing. 12 Many economists do 


Sse generally, R. Lande, Wealth Transfers as the Origin 

agiBfta ? 


Inal 

.on 


10 

n 


13 


Paradox 298. 
Paradox 38. 
Paradox lio-ll. 


- 4 - 



3422 


consider them. 13 The Bork economic model is alio heavily biased 
toward the view that growth through merger usually increases 
productive efficiency. However, a recent major study supported 
by the P.T.C,, Brookings and the National Science Foundation 
which tracked 6,000 mergers, suggests that mergers are, on 
average, productively inefficient. 

Congress chose to make the antitrust formula a mixture of 
economic, social and political concama, and thia was its 
prerogative. 

Judge Bork told this committee that his approach to 
statutory interpretation was guided by the "intention of 
lawmekers with eppropriate respect for precedent.* Let us 
examine this assertion. 

In addition to Dr. Mllee , most other landmark antitrust 
precedents are dismissed by Judge Bork, such as Justlca Harlan's 
famous majority opinion invalidating the railroad cartel in the 
Northern Securities case, 3 ^ which he states "would be thoroughly 
unimportant but for Justice Harlan's ineptitude in doctrinal 
disputation" and the equally famous dissent of Justice Holmes in 
the same case which was "uneven ... and a curiously inconsietent 


^For example, F.M. Scherer, Industrial Market Structure and 
Econonlc Performance , 471-473 (1980). 

1 *D. Ravenscraft and F.H. Scherer, Mergers, sell-offt, and 

Economic Efficiency , book to be published in 1987 My the - 

Brookings Institution. 

1S Northern Securities Co. v. United States. 193 U.s. 197 
(1904) .- - 


- 5 - 



3423 


piece of work which deprives the Sherman Act of any general 

policy goal and, almost, of any intelligible reason for 

existence.* 16 He also ridicules Justice Brandels' classic 

formulation of the antitrust "rule of reason* 17 in Chicago Board 

of Trade . saying that It owes Its longevity *a very great deal to 

16 

its lack of conceptual clarity.* Judge Bork has summarized the 
Supreme Court's performance when he stated that *the Supreme 
Court (has) failed to understand and give proper weight to the 
crucial concept of business efficiency ... The results could not 
have been worse, and would probably have bean better, if the 

Court had mada the opposite mistake and refused to recognize any 

19 

harm in cartals and monopolies.* 

Thera is at least one antitrust opinion which Judge Bork 
respects, that of then Circuit Judge Taft in the 1898 Addvstpn 
Pipe case, 70 which he cells *one of the greatest. If not the 
greatest, antitrust opinion in the history of the law.* Of this 
opinion, Judga Bork wrote 'he chose his common law casea 
carefully, however, and imposed upon them hie own ideas. What 
emerged was not the restatement it pretended to be ao much as a 


^Paradox 30-31. 

17 chlcago Board of Trade v« Onlted States , 246 U.S. 231 

1 ^Paradox 42. 

19 Paradox 9. 

2 0 0nlted States v. Addvaton Pipe i Staal Co. . 85 Fed. 271 
(6th Cir, 1898), 


- 6 - 



3424 


new structure ... (and) he rejected, in the guise of a discussion 

of cccsnon lav cnees, [Supreme Court Juitice) Whitest 

21 

reasonable-price standard as a sea of doubt*. The greatest 
opinion for Judge Bork la one in which a skillful Circuit Judge 
usea artifice to misrepresent his real agenda and contradict the 
Supreme Court. 

The rest of Judge Bork's equation for statutory construction 
concerns the "intention of the lawmakers.” 

However, Judge Bork has reinterpreted the legislative 
history of the Sherman Act as being devoid of any social or 
political objectives and to reveal as its only "legitimate" goal 
his construct of "consumer welfare" which he states "may ... 
quite legitimately be aald to have been intended by the 

legislature, even though not a single member articulated it even 
22 

to himself." But this revision of legislative meaning and 
history becomes more difficult with the Clayton Act and 
succeeding enactments whose political, social and economic goals 
were more clearly articulated. 

The Bork pronouncement on theae statutes is predictable. 

The "incipiency" standard of the Clayton Act is in Judga Bork’s 
words "as anticompetitive virus, working togathsr with the 


?1 Paradox 2«. 

“paradox 57. 


- 7 - 




Brandeie value strain to protect the Inefficient from 
competition. 

The Roblnaon-Petraen Act of 1936 which outlaw* price 

discrimination, hee in "the hands of the PTC end the court* ... 

24 

been vlcioualy anticompetitive ...* The Caller-Xefauver 
Amendment* of 1950 embody "the theory of the social and political 
purpose* of antitrust (which) are to put the matter kindly, a 
jumble of half-digested notions and mythologies.*^ 5 

Of oourse. Judge Bork is sntitlad to hi* opinion concerning 
the wisdom of these laws, but he takes the next improper step of 
advocating that courts should simply refuse to enforce them, 
stating: 

*1* a court that understands the 
eoonomic theory free, in the fece of 
such a legislative declaration, 
to reply that, for example, no 
vertical merger ever harms 
competition. The Issue is not free 
from doubt, but I think the better 
answer la yes ...An analogous csss 
would be presented if a particularly 
benighted legislature declared that 
poltergaists were the cauae of many 
automobile accidents and that 
apparent negligence should 
be excused if*... poltergeists were 
responsible." 


J 3 Paradox 17. 

3 *Paradox 64. 

26 £U£&* “0. 



3426 


It hu bno assarted by Judge Sort and his supporters that 
Borfc as scholar is not the sane as Boric the judge. There is no 
support for this dichotomy in the United antitrust record Judge 
Bork has compiled on tha Court of Appeals. 

27 

Por example in Mennann v. Reinforced Earth . a 1986 
decision rejecting a claim that the defendant was conducting sham 
litigation against its competitor in an attempt to achieve a 
monopoly. Judge Bork gratuitously called into question the 
antitrust rules which prohibit predatory pricing. However, there 
was no such Claim in Neumann . That aaae merely aerved as a 
vehicle for one of Judge Bork's favorite themes as antitrust 
scholar. In Baumann . Judge Bork also announced -that horizontal 
price-fixing by firms with small market ahares la quite harmless 
- another of the Judge’s scholarly positions, which finds no 
support in Supreme Court precedent and had nothing to do with the 
case before him. 

28 

In the 1986 decision of Rothary Storage v. Atlas Van Linas 
Judgs Bork completely discarded all judicial restraint and 
convartad a simple opportunity to affirm the district court into 
e forum for expounding most of his major antitrust themes. 


2 7 Heumana v. Reinforced Earth Co. . 786 F.2d 424 (D.C. Cir. 
1986). 

,. M I tWgg' j BTmrl" 1 C9 ' Y ' 


- 1 - 



3427 


In Rothary . Judge Bork did the following) 

1 ) He adopted a rula of par se legality for boycott* 

Involving firms without market power, contrary to a 1985 Supreme 
29 

Court decision) 

2) Ha incorrectly reminded u* that efficiency was the only 
concern of the Sherman Act) 

3) He rejected the controlling Supreme Court and Circuit 
precedents which require a rule of reason balancing approach to 
determine the legality of the boycott alleged in Rothery . 
instead he applied the doctrine of ancillary restraints, a 
cornerstons of Bork's scholarly theories about antitrust. 

4) sa then stated that even if a balancing approach were 
used to determine the legality of the boycott, anticompetitive 
effect could be demonstrated only if the defendant had market 
power. However, the Supreme Court had just taken the opposite 
position when in dealding Indiana Federation of Dentists 30 it 
reasoned that actual detrimental effects ware the direct evidence 
for which market power analysis was merely a surrogate. 31 

In her concurrence in Rothery . Judge Wald quickly 
demonstrated that a simple affirmance wee in order and that Judge 


30 F.T.C. v. Indiana Federation of Dentists. 106 S. Ct. 2009 
(1986). 

31 106 S. Ct. at 2019. 


- 10 ' 



3428 


Bork'a opinion was excessivs and asserted principles of law at 
varianca with settled precedent. 32 

If confirmed. Judge Bork aeema likely to attempt to awing 
the Supreme Court to the following epeclflc antitruat poaltiona, 
beyond hla primary goal to make all antitruat cases an Inquiry 
into efficiency conaldarationa uaing market ahare data aa the 
primary evidentiary tool. 

1. All vertical price-fixing and all non-price vertical 
restraints of trade would be lawful. 33 

34 

2. All conglomerate and vertical mergere would be lawful. 

3. All horizontal mergers would be permitted up to and 
including the point at which an lnduatry was left with only three 
aubatantial firms, ona of which could attain a 401 market ahare. 
This aquataa to a parmisaibla SHI aoncantration ratio of roughly 
3400, wbaraaa both tha Juatlca Department and the state Attorneys 
General Merger Guidelines now consider HHI of 1$00 to be the 
threshold of high concentration and likaly antitruat 
intervention. 33 

4. All tying arrangements and exclusive dealing 
arrangements would ba lawful. 3 * 


32 7»2 r.2d at 230. 
3 3 Paradox 208,297. 
34 Paradox 24S, 2«2. 
3 5 Paradox 221-22. 
3 *Paradox, 303,381. 


- 11 - 



3429 


5. Claim* of predatory pricing and prlca discrimination 
would no longer be actionable. 37 

6. Horizontal price fixing and market allocation would be 
lawful if engaged in by seller* with roughly 404 or less 
market share, who were engaged in same other legitimate form of 

ti 

integration, such as joint advertising. 

If you believe as Judge Bork doe* that the administration of 
the antitrust laws during the last century has been worse than no 
law at all, you might welcome all of these radical steps. 

If you belisvs, as I do, that though imperfsct, the 
antitrust laws havs, and continue to aervc, their role as tha 
"Magna carta" of the free enterprise system and further important 
economic, social and political goals articulatsd by tha Congress, 
then you should view this agenda as a preventable tragedy. But I 
think that we must all agrea that if auch a monumental change is 
to occur it should only occur in our system of government am the 
result of a clear act of legislative will. In the area of 
antitruat. Judge Bork has devoted hlmaelf to advancing hia 
private agenda in clear disregard of tha will of the Congress. 

For that reason I strongly urge you to reject hie nomination! 


37 Faradox . 401, 153. 
3 8 Paradox . 278-79. 


- 12 - 



3430 


The Chairman. Thank you, General. 

General Brown. 

TESTIMONY OF CHARLES G. BROWN 

Mr. Brown. Thank you, Mr. Chairman. 

I am Charles G. Brown, Attorney General of West Virginia. A 
major portion of my career has been spent as an antitrust enforce¬ 
ment official. I served as a staff attorney at the Federal Trade 
Commission under three chairmen. I then was the first director of 
West Virginia’s antitrust program. I am now the chair of the Anti¬ 
trust Committee of the National Association of Attorneys General, 
but the organization has taken no position on this nomination. 

I am here today because I am concerned that the tools I now 
apply in the maintenance of a free market economy will be elimi¬ 
nated. The recent abandonment of market oversight by federal en¬ 
forcement officials has been justified by reliance on the theories of 
efficiency originally authored by Professor Bork and other Chicago 
School adherents. The practical effect of the application of Profes¬ 
sor Bork’s ideas has been to allow unwarranted mergers and other 
historically recognized restraints of trade. 

But it is one thing to endure an enforcement policy vacuum for a 
few years. It is quite smother for the nation's highest Court to 
carve in granite a policy that requires the elimination of enforce¬ 
ment of both federal and State antitrust laws. 

In his thesis on antitrust, called “The Antitrust Paradox,’’ Pro¬ 
fessor Bork states that “The central institution in making antitrust 
law has been the Supreme Court.’’ With this extensive power in 
hand. Professor Bork makes clear that he would use it to gut 
nearly a century of antitrust precedents. 

I quote from his conclusion in “The Antitrust Paradox”: “It 
would have been best if the courts, first confronted with the Clay¬ 
ton Act and later the Robinson-Patman Act, had said something 
along these lines: We can discern no way in which tying arrange¬ 
ments, exclusive dealing contracts, vertical mergers, price differ¬ 
ences, and the like injure competition or lead to monopoly . . . We 
hold that, with the sole exception of horizontal mergers, the prac¬ 
tices mentioned in the statutes, never injure competition and hence 
are not illegal under the laws as written.” 

Talk about judicial activism. This is a total disregard of the will 
of Congress. Those of us down in the trenches of day-to-day anti¬ 
trust enforcement are astounded by these suggestions. Legalizing 
vertical price-fixing means an end to discount pricing for consumer 
goods. Many consumers in West Virginia and South Carolina and 
New Hampshire want or need to buy at discount stores, and they 
could no longer do so. And retailers would no longer have the free¬ 
dom to set their own prices. 

Here is another example. General Motors could acquire USX and 
buy ail of its steel from its captive company. 

If, as the Supreme Court has said, the antitrust laws are the 
Magna Carta of free enterprise, then Professor Bork’s wholesale 
dismissal of vertical restraints is certainly the moral equivalent of 
a war on antitrust. 

Judge Bork’s desire to overturn federal antitrust case law has 
more than simply federal enforcement ramifications. This is be¬ 
cause many State antitrust statutes, such as West Virginia’s, spe¬ 
cifically incorporate federal case law precedents as controlling on 



3431 


State courts. Look at the impact. This year. Attorney General 
Abrams, to my right, a Democrat of New York, led the fight to 
return money into the pockets of American camera consumers due 
to resale price maintenance. And Attorney General Roy Zimmer¬ 
man, Republican of Pennsylvania, acted promptly to block the 
merger of the two largest department stores in Pittsburgh. 

We would see the institutionalization of non-enforcement on the 
federal level and the gradual erosion of this enforcement by the 
States. The real victims of a Bork antitrust era on the Supreme 
Court will be consumers, small business entrepreneurs, and mid¬ 
sized corporations. For the individual buyer and the bold business 
person, there will be nothing free about the market created by 
Judge Bork. Price-fixing and exclusive dealing will rule the mar¬ 
ketplace. Innovative industrialists will be absorbed into the gray 
corporate giants. 

Judge Bork’s effect on antitrust law is simply not as conducive to 
a 10-second spot on the evening news, as are the other issues so 
hotly debate in the past few weeks. However, I submit to this com¬ 
mittee that in no other area will the effect of a Bork appointment 
be so completely felt. 

The short-run effect would be the squeezing of American pocket- 
books and the draining of America’s entrepreneurial spirit. The 
long-run impact would be to impede those principles of business 
freedom which Americans so deeply cherish. 

Through its enactment and amendment of the antitrust laws 
over the past century, the Congress has taken the initiative to pre¬ 
serve economic liberty. I only hope that this committee will reaf¬ 
firm that congressional commitment by voting against the confir¬ 
mation of Judge Robert H. Bork. 

Thank you, Chairman Biden. 

[The statement of Mr. Brown follows:] 



3432 


TESTIMONY OF 
CHARLES G. BROWN 

ATTORNEY GENERAL OF WEST VIRGINIA 

Thank you, Mr. Chairman. 

Before I begin this morning, I wish to emphasize that I appear 
here today only in my capacity as The Attorney General of West 
Virginia. Although I recently assumed the Chairmanship of the 
Antitrust Committee of the National Association of Attorneys 
General, mv views are not meant to mirror any consensus of the NAAG 
organization on the Bork nomination. 

A major portion of my career as a lawyer has been spent as an 
antitrust enforcement official. I was a staff attorney at the 
Federal Trade Commission under three chairmen--one democrat and two 
republican. Prior to being elected Attorney General, I was the 
first director of West Virginia's antitrust program. 

My close association with the development :>f effective antitrust 
enforcement is what cnngs me here before you today. I am concerned 
that the tools I no., j t _y to assist in the maintenance of a free 
market economy will be eliminated by a slant of the Supreme Court 
toward the antitrust '.'osophy espoused by Ju Berk. 

Antitrust has teen Judge Bork's main focus as an academic and as 
a member of the pnv.i* iector, and therefore, I will not challenge 
directly the quality : depth of his scholarship. Moreover, the 

academic community and recent literature have already addressed many 
of the more esoteric aspects of his professional acumen. Rather, my 
concern before this Committee is to spark an examination of the 
broader implications of Judge Bork's views, and the practical 
results for antitrust enforcement of a Bork appointment. 

Professor Bork finds the foundation for his antitrust views in 
the area of legal philosophy known as the school of "Law and 




3433 


Economics," or the "Chicago School." For Judge Bork, an allegiance 
to the Chicago School philosophy has translated into an efficiency- 
based model of antitrust. Public Citizen, The Judicial Record of 
Judge Robert H. Bork (1987), 117-118. He finds that "the core of 
the difficulty [with present antitrust interpretations] is that the 
courts, and particularly the Supreme Court, have failed to under¬ 
stand and give proper weight to the crucial concept of business 
efficiency." R. Bor<. The Antitrust Paradox 7 (1978). Although 
Judge Qork attempts tt emphasize a belief on his part that the 
ultimate goal of the antitrust statutes is consumer welfare, this 
belief is, in fact, filtered by primary attention to the needs of 
business. Icl, at 107-116. 

The Chicago School teachings espoused by Judge Bork have already 
had a negative effect os' the e nforcement cf antitrust at the fede^- , 

level. For six and a half years the Department of Justice’s Anti¬ 
trust Division has maintained only a limited enforcement effort 
under The Sherman and Clayton Acts. The reduction in staff in the 
Antitrust Division has been one of the clearest indicia of the 
reduced antitrust effort. From 1980 to 1987, the number of 
attorneys serving in the Antitrust Division has fallen from 429 to 
240. Insight , June 15, 1987, 9, 12. Economist, paralegal, clerical 
and secretarial staff, during the same time period, has fallen from 
883 to 539. Id. 

The actual number of cases brought by justice has also provided 
clear eviden-.e of a limited enforcement policy. Professor Eleanor 
Fox, the eminent antitrust scholar at the NYU Law School, recently 
noted the effect of "Chicago School” policies on Department of 
Justice litigation statistics: "Between 1981 and 1985, [Justice] 
challenged only 28 mergers and almost all were settled upon the 
filing of a complaint ■* 1 :>ng with a consent decree, requiring only 
minor divestiture or other obligations;” during that same period 
■justice "brought only t -o civil and no criminal monopoly cases.., 
compared with 11 civil monopoly cases in the period from 1976 to 


1980.” Id. 



3434 


The actions of market participants have also manifested a belief 
that antitrust enforcement has become a paper tiger. Professor Fox 
points this out by citing the growing number of mergers, and their 
size, during the past six years. She notes that, “[mjerger activity 
rose to a record level in each of the past four years. In 1983, the 
total number of mergers consummated was 2,533, the largest number 
since 1974. The 1983 merger deals amounted to $73.1 Billion and 
included 137 transactions worth $100 Million or more. In 1984, 
there were 2,543 mergers, worth $122.2 Billion, including 200 
mergers worth more than $100 Million. In 1985, there were 3,001 
mergers, which set a 12-year record and represented an 18 percent 
increase over 1984. The vplue of the transactions was $179.6 
Billion, nearly 50 percent higher than in 1984. Of the 1985 
mergers, 268 were valued at S100 Million or more and 36 were valued 
at or over $1 Billion.” Id. In short, an allegiance to the 
theories of “efficiency” has left business free to engage in the 
anti -competitive met , and other restraints of trade which 
previously had been aacu essed by adequate enfoicement resources at 
the federal level. 

The withdrawal -f federal enforcement efforts over the past 
six and one half years nas largely left it to the state attorneys 
general to enforce Thi. ,: herman and Clayton Acts, as well as th*ir 
own state antitrust statutes. Despite limited resources, we have 
somehow managed to coordinate the efforts of individual states in 
order to maintain at least a minimal deterrent to anti-competitive 
practices on a nationwide basis. For instance, the lack of a 
federal effort left it to the Attorney General of New York to bring 
suit in Federal Court against the four major national brewers 
concerning their use of exclusive territories for the distribution 
of beer. New York v. Anheuser Busch, Inc. , 86 Civ. 2345 (E.D.N.Y, 
1986). The federal enforcement vacuum also left it to the joint 
efforts of 35 states to bring the first national resale price 
maintenance litigation instituted by a governmental agency «ince 
1980. state of Mar yl and, et al. v. Minolta Corp. , B86-613 (D. Md. 
1986). This increasing role for the states has produced the benefit 
of coordinating the disparate resources of 50 sovereign units, but 



3436 


this growing efficiency would not be otherwise necessary given a 
legitimate federal antitrust effort. 

Of course, I recce-ize that the particular policies of federal 
antitrust enforcement v the prerogative of t~c.ce who are elected 
and appointed to carry cut the federal executive role. But I 
believe a Bock appointment will have a detrimental effect not only 
on federal antitrust -orcement policies, but also on the ability 
of the states to enforce even rheir own antitrust statutes. After 
all, it is one thing to endure an enforcement policy vacuum at tne 
federal level for four or eight years -- it is quite another to 
saddle the nations highest court, for a lifetime, with an economic 
philosophy which requires the elimination of almost all enforcement, 
both federal and state. 

My substantive legal objections to a Bork appointment r from an 
antitrust perspective, are not based on some hypothetical, "swing- 
vote" analysis. 1 believe that Judge Bork will represent more th.i- 
simply a ninth voice on Supreme Court antitrust decisions. His 
ascension to the Court would signal the beginning of the end of 
almost a c- itury or antitrust case law and statutory development. 
Bork will not simply eigh in his opinion w.-h the others on anti¬ 
trust issues. Bork nas ^hown that he has a iefinite agenda in thi 
area of the law, ar.J .2 /ill no doubt meet at agenda by seeking 
out the authorship * the Court’s opinions on antitrust well into 
the next century. 

ir takes v.'_-r^ .. * .0 stretch of lego* i"'o_ . .on to see r.^ , 
Bork’s reactionary • - .s of the economic world c.ald begin to mi. 
the precedent of m rburdened Supreme Court. Judge Borx's eager¬ 
ness to apply Chic cn do 1 rhetoric has already surfaced ip 

Poth ery Stor age a .. • . an opinion he authored while sitting c 

the D.C. Circuit Court of Appeals. Rothery Storage & Van Co. v. 
Atl as Van Lines, lnc. ( 792 F.2D 210 (D.C. Cir. 1986). The case was 
a simple one on its merits -- A national van line was held not to 
have perpetrated a group boycott against independent carriers by 




3436 


requiring the independents to deal exclusively with the national 
line. Id, 791 F.2D at 230. Vet, Judge Bork transformed this 
straightforward case into a platform for renouncing the ]ong-held 
standards of evaluation used in horizontal restraints cases. 


Judge Bork dismissed the rule of reason analysis as unnecessar¬ 
ily broad for deciding the type of case represented by Rotl.ery . 
Instead, he opined that the entire case could be decided simply by 
looking at the market share of the companies involved. Id, 792 F.2 
at 221. Since atlas had only 6 percent of toe market, Bork reasone 
that it was not pos‘i!;.e for the company to have enough market powe 
to eliminate compet_t-on. Id. He therefore attempts to create th^ 
assumption that the : end ant' s exclusive-dealing requirement gre^ 
out of a purpose of fc\ ;iness efficiency. The Judici al Re cord of 
J udge Robert H. Bork, Public Citizen Litigation Group, August 1987, 
at 121. Of greater ■’ '■ cern even than the test he fashions is the 
fact that this test . Lifted almost directly from his book The 
An titrust Paradox. Be r«, surra, at 90-115. 

Judge Bork’s opinion in Rothery , the only antitrust decision of 
any significance during his tenure on the D. C. Circuit, demon¬ 
strates the extent to which he will apply the Chicago School 
economic vision to cases which come before him. In his tome on 
antitrust, called The Antitrust Paradox , Professor Bork recognizes 
that, "The central institution in making antitrust law has been the 
Supreme Court." With this extensive power in hand. Professor Bork 
makes clear that he would use it to gut nearly a century of 
antitrust precedents: 


"It would have been best...if the Courts first confronted 
with The Clayton Act and later the Robinson-Patman Act had 
said something along these lines: We can discern no way in 
which tying arrangements, exclusive dealing contracts, 
vertical mergers, price differences, and the like injure 
competition or lead to monopoly. We certainly are unable to 
estimate the likelihood of such results m their incipiency. 
For these reasons, and since the statutes in question leave 
the ultimate economic judgment to us, wr hold that, with the 
sole exception ot horizontal mergers, t:i practices mention¬ 
ed m the star-“'72, never in jur e competition and hence are 
not illegal uncv: the la*»s as written.* 


Id, at 410-11. 





3437 


Those who are j.-.t -ell versed :n antitrust -"ay not at first 
recognize the signifi ^nce of this pronouncement. However, those 
us down in the tretv of day-to-day antitrust enforcement are 
dumfounded by the .cations. Bork, in essence, would discard 

whol» sections of * .wti trust statutes and the case precedents 
interpreting them. 

Bork could not have made it more clear, in the passage quoted, 
that he would discard, if given the chance, the whole area of 
statutory law related to vertical restraints of trade. In fact. 
Justice Bork would only maintain very limited boundaries for all of 
antitrust enforcement: 


"(3) The law should be reformed so that it strikes at 
three classes of behavior: 

(A) The suppression of competition by hori¬ 
zontal agreement, such as the nonancillary 
agreements of rivals or potential rivals to 
fix prices or divide markets. 

(B) Horizontal mergers creating very large market 
shares (those that leave fewer than three signif¬ 
icant rivals in any market). 

(C) Deliberate predation engaged in to drive 
rivals from a market, prevent or delay the entry 
of rivals, or discipline existing rivals." 

"(4) The law should permit agreements on Prices, 
territories, refusals to deal, and otner suppressions of 
rivalry that are ancillary, in the sense discussed, to an 
integration of productive economic a>' tivity. It should 
abandon its concern wLth such benefit~al practices as 
small horizontal mergers, ail vertical and conglomerate 
mergers, vertical price maintenance and market division, 
tying arrar* - • ~*ts, exclusive dealing and requirements 
contracts, p^Jatory" price cutting, price 
''discmunafi?'', " and the like. Antitrust should have no 
concern with ary firm size or industry structure created 
by internal growth or by a merger more t^an ten years 
old." 


More important r h his personal antitrust agenda is Judge 
Bork's entire sppr .h Lo tne antitrust statutory structure. Ofte 1 - 
his scholarship seems less a search for original intent in The 
Sherman Act by a man employing judicial restraint, than it does the 
jettison of two thirds of the federal antitrust statutes and at 
least half of all antitrust case law precedents. 


Professor Robert H. Lande recently pointed out the selective use 
of original intent by Judge Bork to support the premises of The 
Chicago School. R. Lande, "An Anti-Antitrust Activist?," The 



3438 


National Law Journal , September 7, 1987 r 13- Professor Lande noted 
that Bork’s subtle definition of the phrase "consumer welfare," the 
central purpose of the antitrust statutes, has nothing at all to do 
with the avoidance of non-competitive wealth transfers frc.n consumer 
to monopolist. Id, at 28. Instead Judge Bork defines consume^ 
welfare as economic efficiency, thereby eliminating the distinction 
between those who purchase goods and servio s and the companies wi" 
market power that ra: c prices and thereby tract wealth from tho~ 
purchasers. Id. -", long as the monopoly in the particular market 
produces its goods or devices more efficiently. Judge Bork is 
unconcerned that the result is higher prices for consumers. Id . 

Judge Bork's appl -ation of Chicago school precepts to the 
definition of consu’- . cl fare comes as no surprise. The disturb¬ 
ing aspect of his a . >-S is his manipulation of the legislative 
history of The Sherman Act to conform to his own economic philos¬ 
ophy. R. Bork, supra , 50-72. As Professor Lande notes in his 
article, "[Judge Bork] is mistaken in his belief that Congress 
understood [their concern over the higher prices consumers face as a 
result of monopoly pricing] to mean a desire to avoid economic inef¬ 
ficiency ...[ejven leading economists of the day had only a tenuous 
understanding of this concept." Id. Instead, Lande points out, the 
Congressional debates were filled with "value-laden condemnations of 
the wealth-extraction effects of monopoly pricing [which] show a 
much broader concern than with mere economic efficiency." Id. In 
essence, "Judge Bork tried to make the stock-holders of monopolies 
and cartel- into honorary consumers: but the consumers that 
Congress wanted to protect comprised only purchasers of goods and 
services." id. 

The bottom line reads clearly that Judge Bork is not likely to 
be a stricr construct\onisc on antitrust at all. As Professor La ,N 
so eloquently puts it, " [m] oderates and liberals may have little t 
fear from a true amet constructionist since such a justice woulu 
impartially implement Congress' original intent... Judge Bork, how¬ 
ever, saves his narre . view of a Judge's role for instances when 



3439 


this posture is consistent with his preferred ends. In other case: 
he finds a way to reach the result demanded by his ideology and 
denounces contrary conclusions as 'unconstitutional.'’' Id . 

As a State Attorney General, l believe I could weather the 
Borkian effect on federal antitrust law if it only perpetuated the 
federal enforcement vacuum that the states have already endured for 
six and one-half years. However, Bork’s convenient dismissals of 
both federal antitrust case precedents and the original intent of 
The Sherman Act have more than simply federal enforcement ramifica¬ 
tions. This is because many state antitrust statutes, including 
West Virginia’s, specifically incorporate federal case law prece¬ 
dents as controlling on the state courts. WV Code 47-18-1*; 
A nziulewicz v. Bl uefield Community Hospital , 531 F.Supp. 49 
(S.D.W.Va. 1981). The conceptual dismemberment, by a BorK- 
mfluenced Court, of fundamental federal antitrust concepts would 
spontaneously become ■rate law by virtue of chese incorporation 
sections of the state statutes- The ultimate effect, as on the 
federal level , will ►» to erode enforcement under state antitrust 
Ians as well. Unlike surviving the policy of a particular executi" - 
administration, such changes, if instituted by che Supreme Court, 
will remain immutable lor a generation or more. 1 do not think it 
extreme to say that trust, as it has been practiced since its 

inception, will no ;->r exist as a tool for maintaining the heaitr 
of the national ecor ”y or the economies of the individual states. 

I would argue that tne end result of a Bork nomination will be 
the institutionalization of non-enforcement on the federal level and 
the eventual erosion of any meaningful action by the states. 

However, the real victims of a Bork antitrust era on the Supreme 
Court will be consumers, the small business entrepreneur, and mid¬ 
size corporations. For the individual buyer and the intrepid 
business person, there will be nothing "free” about the market 
created by Judge Bork. Price-fixing and exclusive dealing will rule 
the market place, and innovative industrialists will be absorbed 
into the gray corporate giants. 



3440 


In a Borklan marketplace, sprawling industrial behemoths, like 
L-T-V, will be "free' 1 to swallow their rivals, and then wallow in 
bankruptcy while retired workers are left hi ;h and dry. Yesterday -> 
management will be entrenched in the nation' j> boardrooms, "free” tv- 
employ the survival tactics of corporate buy-out, instead of the 
strategies of industrial renewal. 

In summing up , let me emphasize that Z am not in the . 

of preaching doom. \<: r is this Committee likely to see a host of 
other antitrust supp:r r ors carrying placards in the streets of 
Washington. Judge E*,; :*s effect on antitrust la« is simply not as 
conducive to a ten s-'t-nd spot on the evening news as are the othe* - 
issues so hotly debated in these past weeks - 

However, I submit to this Committee that in no other area will 
the effect of a Bork appointment be so completely felt. Although he 
may be able to dodge questions about privacy rights and affirmative 
action with a nod to the hypothetical nature of such interrogations, 
I do not believe that Judge Bork is likely to repudiate the anti¬ 
trust views which he has so meticulously crafted over the entire 
course of his professional life. 

The short-run effects of a Bork appointment will be felt in the 
squeezing c * consumer poc!i.atbook£ and the draining of America's 
entrepreneurial spirit. In the long-run, the application of Borkia’ 
antitrust principles to the U. S. marketplace will only serve to 
impede those principles of business freedom hich Americans have 
always demanded. through its enactment and amendment of the 
antitrust laws over ‘-e past nine decades, tms Congress has taken 
the initiative to presetve this economic liberty. I only hope tha*. 
this Committee will ;.eaffarm thar Congressional commitment by vet: ■ 
against the confirmation of Judge Robert H. Bork. 


Thank you, Mr. C h .rman. 



3441 


The Chairman. Thank you very much, General. 

Dean Pitofsky. 

TESTIMONY OF ROBERT PITOFSKY 

Mr. Pitofsky. Thank you, Senator Biden. 

I have thought a good deal about what I could possibly say in a 
short time that would be helpful to the committee in examining 
Judge Bork’s record. I will this morning only touch on two themes: 
First- 

Senator Metzenbaum. Bring your mike closer. 

The Chairman. The microphone. It is the middle one. You have 
to speak right into it. 

Mr. Pitofsky. First, even among conservatives. Judge Bork is 
rather extreme in his criticism of antitrust policy; second—and I 
think more important—when you examine Judge Bork’s scholar¬ 
ship and his work in the antitrust field, it is striking to see his will¬ 
ingness to substitute his views in the face of contrary legislative 
history and precedent. 

Now, it has been said and will be said that Judge Bork is a bold 
and brilliant scholar—which is true, in my opinion—and that he 
has been influential in molding the antitrust policy of the 1980’s, 
which is also true. But I suggest that those are not really the issues 
that should be decisive here. 

It is not a question of whether Judge Bork is an insightful schol¬ 
ar, but, rather, where that scholarship leads him. I would point out 
that it leads to an extraordinarily conservative attitude toward 
antitrust. Judge Bork has been candid about what he thinks anti¬ 
trust policy should consist of. It is price-fixing enforcement—and, 
of course, no one disagrees with that; merger enforcement against 
very large horizontal mergers; and some enforcement against pre¬ 
dation, although he defines predation in such a way that you will 
hardly ever encounter it in the real world. 

All of the rest of antitrust, scores of cases decided by the Su¬ 
preme Court in the last 50 years, would be abandoned. There would 
be no enforcement against conglomerate mergers, virtually none 
against vertical mergers, no boycott enforcement, no enforcement 
against vertical agreements like resale price maintenance and tie- 
in sales—even though tie-in sales are expressly covered in the Clay¬ 
ton Act—no price discrimination cases. 

I emphasize the word “abandoned.” There are many conservative 
critics who have argued, and I have argued myself on occasion, 
that antitrust policy should be relaxed, should be eased, should be 
adjusted. Virtually no one argues the way Judge Bork does that it 
should be completely abandoned to such a great extent. 

Now, how does he get to this position? The linchpin of his argu¬ 
ment is that only economics counts; that any a “political consider¬ 
ations”—for example, the possibility that massive concentration 
will threaten the stability of the political process—is irrelevant. 
And when it is pointed out to Judge Bork that there are cases and 
much legislative history that go the other way, he is again quite 
candid. He says that only economics counts and that is all he is 
going to pay attention to. 

In a program in New York just 6 months ago—I emphasize the 
date; this is not a seminar at Yale 20 years ago—when challenged 
that legislative history demands a political dimension to antitrust 
enforcement, Judge Bork said, “If everything said by the propo- 



3442 


nents of multiple goals, of political goals of antitrust, if all of that 
were true, it would not matter. I would not be bound to follow it,” 
because of his view of the constitutional doctrine of separation of 
powers. 

Why does he take that position? Well, Attorney General Abrams 
has already cited the quote that I think is critical: He has ex¬ 
pressed a fundamental disdain for the ability of Congress to legis¬ 
late in the economic Field or to understand economics, and a view 
that the courts have been weak and spineless in going along with 
Congress’ silly laws in this area. 

Let me try to bring his views into focus with one Final hypotheti¬ 
cal, and I emphasize it is a hypothetical. I do not think this would 
happen in the real world. But suppose as a result of mergers and 
acquisitions, we ended up in this country with just Five or six mam¬ 
moth corporations serving every market. Judge Bork’s view of that 
situation would be that there is nothing wrong with it. There is no 
reason for conglomerate or vertical concerns, and horizontal con¬ 
cerns are addressed if there are three or four companies left. 

One could argue about that. I think that is dead wrong. But 
more important for this committee, I emphasize this point- 

The Chairman. Dean, for those who are listening, explain the 
difference between horizontal and vertical in terms of antitrust. 

Mr. Pitofsky. Horizontal aergers are mergers between direct 
active competitors. Judge Boibelieves that cases like that should 
be brought. 

The Chairman. You mean, or example, Ford and Chrysler? 

Mr. Pitofsky. Yes. Although I am not sure he would bring that 
particular case because comb' led market shares would not amount 
to 40 or 50 percent of the mar ket. GM and Chrysler would be chal¬ 
lenged; but maybe Ford and Chrysler would get through under 
Judge Bork’s views. 

Vertical mergers are between buyers and sellers; U.S. Steel, say, 
and General Motors. Conglomerate mergers are between unrelated 
companies. He would drop enforcement in the last two areas. 

Where does abandonment i f enforcement in those areas lead? If 
we ended up in this country vith five gigantic, mammoth corpora¬ 
tions, Judge Bork would say, “So what? Economics really should 
not be concerned about that.” And if told, “Well, that may be your 
view of economics, but Congress probably would be uncomfortable 
with that situation,” he would say, “I do not have to follow Con¬ 
gress’ will in this area because the antitrust laws are so general. 
And besides, Congress really does not understand what they are 
doing in legislating in the antitrust field.” 

I would think that view ought to give members of the Senate 
some concern. 

Thank you. 

[The statement of Professor Pitofsky follows:] 



3443 


TESTIMONY 

of 

ROBERT PITOFSKY 
Professor of Law and Dean 
Georgetown University Law Center 
Before The 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 
Concerning 

CONFIRMATION HEARINGS ON ROBERT BORK 
September 29, 1987 


88-374 0 - 89-24 



3444 


2 - 


I appreciate the opportunity to testify in these 
exceptionally important hearings considering the 
confirmation of Robert Bork as a Justice of the Supreme 
Court. 

I intend to discuss Judge Bork's record as a 
scholar and judge in the field of antitrust. I will 
emphasize two themes: first, that Judge Bork in the 
antitrust field is an activist of the right, ready and 
willing to substitute his views for legislative history 
and precedent in order to achieve his ideological goals; 
and, second, even when examined by comparison to other 
conservative critics of antitrust enforcement, his views 
are extreme. 

It is important to examine Judge Bork's views 
concerning antitrust carefully. He has taught and 
written in that field extensively, and has described it 
as a microcosm for the rest of what goes on in society.*’ 
If his views on antitrust reflect a general attitude 
about the role of the legislature in setting policy in 
this country, then his appointment would threaten the 
delicate balance among the legislative, executive, and 
judicial branches that is at the heart of the American 
constitutional system. 


1 R. Bork, The Antitrust Paradox: A Policy at War with 
Itself , 10 (1978) ("Antitrust Paradox"). 



3445 


- 3 - 


Let me emphasize that ray reservations about this 
nomination are a matter of policy — i_.e., questions 
about Judge Bork's views of the role of law and of 
judges in a constitutional system and his views about 
antitrust enforcement. My remarks are not intended as a 
personal attack on Robert Bork. On the contrary, he has 
been an exciting and dynamic law professor and a 
brilli&nt and influential scholar in antitrust and other 
fields. He is also a man of great personal integrity. 
Nevertheless, I believe confirmation of his nomination 
to the Supreme Court would be a mistake. 

1. The Goals of Antitrust . Judge Bork has 
consistently adhered to an extremely conservative view 
of antitrust enforcement. In his writings, he has 
advocated that the only business activities that should 
violate the antitrust laws are price fixing and market 
division among competitors, horizontal mergers among 
extremely large companies, and predatory (that is, 
intentionally exclusionary) business conduct. All of 
the rest of antitrust — the subject of bipartisan 
support for almost 50 years — would be eliminated. 

Judge Bork's views are based on his conclusion 
that Congress, in enacting the antitrust laws, was 
solely motivated by a concern with ’’allocative’ 1 
efficiency, which he likes to call "consumer welfare." 
This is a technical economic label and is somewhat 



3446 


- A - 

misleading; Cor example, if a particular "efficient" 
practice enriched only producers and not consumers, 
conservatives would still say the practice enhanced 
"consumer welfare." 

One of Judge Bork's important pieces of 
scholarship was an article published in 1966 in which he 
reviewed the legislative history of the Sherman Act and 
concluded that the intent of the legislators who enacted 
that law was solely to achieve beneficial economic 
results.^ But it is undisputed that economists had 
virtually nothing to do with the drafting of or debate 
about that statute. Other scholars, reviewing the same 
legislative history, have concluded that Congress was 
motivated by broader concerns that concentrated economic 
power would threaten the opportunities of individuals 

and small businesses, and eventually undermine a private 

. -1 

enterprise system. 

Even if the legislative history preceding the 
Sherman Act is obscure, Judge Bork's "only economics 
matters” approach to antitrust interpretation runs into 
trouble when applied to post-Sherman Act legislation. 

The enactment of the Clayton Act (at the climax of 

^ Bork, Legislative Intent and the Policy of the 
Sherman Act , 9 J Law and Econ. 7 (1966). 

^ See H. Thorelli, The Federal Antitrust Policy , 180 
(1955); W. Letwin, Law and Economic Policy in America , 

59 (1965). 



3447 


- 5 - 

Wilsonian economic reform in 1914), the Robinson-Patman 
Act in 1936 which was plainly designed to assist small 
business, and the amendment of Section 7 of the Clayton 
Act in 1950 to deal with the political consequences of 
what Congress saw as a rising tide toward industrial 
concentration cannot be explained solely in economic 
terms. 

The legislative histories of those statutes 
reveal concern about many "political" issues. For 
example, there was concern about industrial 
concentration because it would create opportunities, in 
time of domestic stress or upheaval, for the overthrow 
of democratic institutions, and would invite greater 
levels of government intrusion into the affairs of a 
free enterprise system because government would be 
unable to leave giant firms in concentrated markets 
politically unaccountable.^ 

To be sure, several commentators on antitrust 
believe that legislative history in the antitrust field 
is not all that clear, and adopt an exclusively economic 
interpretation of the broad language of the antitrust 
statutes. But Judge Bork does not insist on an 
exclusively economic interpretation of the antitrust 

^ For discussion of these themes and their role in the 
legislative histories of the federal antitrust laws, see 
Pitofsky, The Political Content of Antitrust , 127 U.Pa. 
l>. Rev. 1051, 1052-65 (1979). 



3448 


6 - 


laws solely because he believes intent is uncertain. In 

a paper delivered at a conference in New York last 

spring he examined the issue upon the assumption that 

Congress really wanted non-economic concerns to be 

relevant to the interpretation of the antitrust laws. 

Judge Bork then described his position: 

"But I want to go further, and urge 
that if all of these arguments that I 
have made in the past and which I skim 
over here did not exist, and if 
everything said by the proponents of 
multiple goals, of political goals, of 
the antitrust laws, if all of that were 
true, it would not matter, once it is 
admitted that is, if Congressmen 
explicitly said they wanted courts to 
weigh political values against the 
economic welfare of consumers, it would 
not matter. Once it is admitted that a 
major component of antitrust policy is 
the welfare of consumers, and I think 
almost everyone admits that, it 
follows, I think, that consumer welfare 
must be the exclusive goal of the law. 

And the argument here, of course, 
is constitutional and I am speaking 
about separation of powers. We all 
know that the separation of powers 
often requires courts to refuse to do 
things that Congress explicitly directs 
them to do." 5 

While worded in a rather extreme fashion. Judge 
Bork's statement of the right of judges under the 
Constitution to ignore the will of Congress is 
consistent with a lifetime of thought on the subject. 


5 Remarks of Hon. Robert Bork at Conference 
Anticipating Antitrusts Centennial at 4 {Nov. 15, 1986). 



3449 


- 7 - 

In his view, if a particular judgment of Congress is 
"wrong" or difficult to implement (in a Judge's view), 
the Judge is free for those reasons alone to ignore it. 

Underlying all of this thinking is a fundamental 
disdain for the competence of Congress and the Supreme 
Court to understand economics and apply its principles. 
In his "Final Thoughts" chapter of The Antitrust 
Paradox , he asserts that both Congress and the Supreme 
Court are to blame for the decay of the antitrust laws.** 
The Supreme Court operates under the "handicap" of 
having to respond to the will of Congress, itself 
subject to popular whim. 7 But still, he argues, when 
presented with enactments of Congress that require it to 
develop rules to govern practices that Congress believed 
injured competition — but which Judge Bork is persuaded 
cause no such injury — the court simply should have 
refused. 8 

Congress as an institution, according to Judge 
Bork, is "incapable of the sustained, rigorous and 
consistent thought that the fashioning of a rational 
antitrust policy requires." 8 This is largely because of 

® Antitrust Paradox at 408-13. 

7 Id at 409. 

8 Id at 410. 


9 


Id at 412. 



3450 


- 8 - 


its size and its susceptibility to interest group 
influence, and the "strong element of anti-corporate 
populist sentiment" which flork acknowledges is reflected 
in the views of the electorate. 10 

Let me try to sharpen the focus on this issue. 

In effect. Judge Bork has said that even if he received 
incontrovertible proof that every legislator who ever 
addressed the question — in enacting the Sherman Act in 
1890, the Clayton Act in 1914, and amending the Clayton 
Act in 1950 — believed that the drawing of the line 
separating legal from illegal business arrangements 
should take into account the effect of industrial 
concentration on the political process, he would not 
feel bound to accept that view. 

That interpretation follows from the fact that 
Congress' concern about political values was misplaced 
and difficult to implement, and that the courts in the 
past have been spineless in not resisting these foolish 
ideas. It it is odd that these are the views of a judge 
reputed to advocate "original intent and judicial 
restraint." 11 In the antitrust field where the 
legislative intent and much precedent may reflect values 

10 Id at 413. 

11 Of course, the antitrust laws are not parts of the 
Constitution, but they frequently have been referred to 
as constitutional in scope. See Northern Pac. Ry. v. 
United States , 356 U.S. 1, 4 (1958). 


3451 


- 9 - 


that Judge Bork does not respect, he has found a way to 
ignore them, 

I realize that Judge Bork in these hearings has 

testified that he would go along with the will of 

Congress in the antitrust field, even though he thought 

Congress' legislative judgment was mistaken. 

Specifically, Senator Specter asked Judge Bork how he 

would handle challenges to price discrimination under 

the Robinson-Patman Act — a practice that Judge Bork 

has urged is efficiency-creating or innocuous: 

"A. You have to enforce it. It's — you may not 
like it but you've got to enforce it." 


Later, in response to the same line of questioning. 

Judge Bork said: 

"A. . . .I'm out there to follow Congress’ 

intentions. And when Congress has delegated to a 
judge, to the courts, the task of deciding when 
competition is threatened and when it isn't, you 
do the best you can. On the other hand, if 
Congress says this thing threatens competition — 
strike it down, I have to do that even if I don't 
think it threatens competition."^ 2 

Judge Bork's response to Senator Specter's 

questions may well represent his present view of the 

question of a judge's responsibilities to enforce acts 

of Congress. I must point out, however, that his 

current position represents a change of emphasis from 

statements made a few years ago. 


12 


New York Times , September 20, 1987, p. 50, col. 4-5. 



3462 


- 10 - 


When questioned on the subject of Robinson, 
Patman enforcement. Judge Bork pointed out that the 
Robinson-Patman Act outlaws price discrimination only 
when it injures competition, and that "There is never a 
price discrimination that injures competition." 13 In 
explaining why a judge should not enforce the Act, he 
said: 


"If the legislators tell a judge what to do, of 
course he has to do it, no matter what his 
personal views. But the Robinson-Patman Act does 
not do that. There is a theory that Congress did 
not mean what it said in the Robinson-Patman Act; 
that it said protect competition but really meant 
protect small business. That is the theory that 
Congress winked at when it enacted the statute. 

I do not think it is a judge's business to 
enforce a legislative wink. That would be to 
help a legislature evade its proper political 
responsibility. 1,14 

In short, Judge Bork's assertion and testimony here that 
he would enforce the Robinson-Patman Act must be 
qualified by his assertions that it need be enforced 
only where there is an injury to competition, and he 
believes that price discrimination — the primary 
practice covered by the Robinson-Patman Act — never 
injures competition. 

2. Attitudes Toward Antitrust Precedent . Judge 
Bork's views discussed to this point were advanced when 
he was a law professor, and a scholar has the right 


13 The Conference Board, p. 9 (March 3, 1983). 


14 


Id. 



3453 


- li - 


(even the duty) to be original, unconventional and 
provocative. It might be thought that Judge Bork on the 
bench would be less inclined to introduce into opinions 
his special views about antitrust. 

It is difficult to evaluate Judge Bork as an 
antitrust judge. Few antitrust cases have been heard by 
the District of Columbia circuit since Judge Bork joined 
that court. His most ambitious opinion — writing for 
the court in Rothery Storage and Van Co. v. Atlas Van 
Lines, Inc. 15 — shows Judge Bork as remarkably 
energetic in inserting his special views about antitrust 
into a judicial opinion. 

The case involved arrangements among agents of a 
moving van company which accounted for only five or six 
percent of the market. Judge Bork concluded (as did the 
trial judge and his fellow judges on the District of 
Columbia panel) that the transaction was reasonable and 
therefore legal. 

The result in Rothery is not troublesome, but the 
reasoning employed to reach that result is worth 
examining. First, Judge Bork concluded that it was 
inconceivable that any practice engaged in by a company 
with as small a market share as Atlas could have any 
economically significant adverse effects. That is a 

792 F.2d 210 (D.C. Cir. 1986), cert, denied, 107 S. 
Court 880 (1987) . 



3454 


- 12 - 

central tenet of Judge Bork’s scholarly writing, but 
hardly an established principle of antitrust law. 

Indeed, about the same time Judge Bork's Rothery opinion 
was published, the Supreme Court decided FTC v. Indiana 
Federation of Dentists ^- 8 and unanimously held that a 
small market share was not controlling in cases in which 
the challenged practices were sufficiently 
anticompetitive. 

Second, in Rothery Judge Bork also stated his 
view that only economics matters, asserting that the 
Supreme Court had adopted this controversial view, 
although the Court had never said anything of the kind. 
Finally, he asserted that two Supreme Court cases which 
included reasoning that was inconsistent with his 
analysis — Topco ^ and Sealy ^ 8 — have been in those 
respects "effectively overruled," 

Judge Bork may turn out to be right in all of his 
assertions incorporated in his Rothery opinion. 
Nevertheless, none of these assertions is settled, and 
the technique of declaring Supreme Court cases 
"effectively overruled" when the Court itself has not 
said so is certainly aggressive. It would underestimate 

16 106 S. Court 2009 (1986). 

United States v. Topco Associates Inc. , 405 U.S. 596 
(3-972) . 

18 United States v. Sealy Inc. , 388 U.S. 350 (1967). 



3455 


- 13 - 


Judge Bork's strong commitment to his special views 
about economics and economic regulation to expect that 
he would do anything on the Court except to attempt to 
implement his views in the course of deciding cases and 
writing opinions, despite legislative history and 
contrary precedent. 

3. Antitrust Views . If Judge Bork's vision of 
antitrust prevails, the range of permissible conduct 
open to businesses in this country would be much broader 
than is presently the case. 

As a result, it is likely that this would be a 
very different country. Large firms could behave far 
more aggressively against rivals without fear of 
monopolization charges, each industry could become 
concentrated by merger to the point where only two or 
three firms remained, and wholesalers and retailers 
would be under the thumb of their suppliers as to where 
and at what price they can sell and what brands they can 
carry. Firms might continue to display vigorous 
competitive characteristics, but that would only be as a 
result of market forces. The antitrust laws would not 
be available as a check should market forces fail to 
work properly. 

In Antitrust Paradox , Judge Bork was admirably 
clear in stating his view that only three classes of 
behavior should be illegal under the antitrust laws: 



3456 


- 14 - 


a. horizontal agreements to suppress 
competition by fixing prices or dividing 
markets; 

b. horizontal mergers that leave fewer 
than three significant rivals in a market; 
and 

c. predatory practices intended to drive 
out rivals, raise barriers to entry, or 
punish actions by rivals already in the 
market. 

Everyone agrees that horizontal agreements to fix 
price or divide markets should be illegal. But 
virtually all of the rest of antitrust enforcement is 
abandoned. To gain an appreciation of how radical these 
views are, one should look at what would not be illegal 
in Judge Bork’s view. 

a. Horizontal mergers . Judge Bork has 
written that mergers with combined market shares of 60 
or 70% should be permitted as long as two or three firms 
remain in the market, but, as a "tactical concession," 
concluded that a 40% cutoff line would be appropriate. 

This Administration has been more lenient in its 
merger enforcement policy than any in 50 years, but 
Judge Bork's views make the current Administration’s 
policies seem recklessly restrictive. Judge Bork’s 
approach would permit, for example, mergers of Exxon and 



3457 


- 15 - 


Texaco in the oil industry; U.S.X. and Bethlehem in the 
steel industry; and Hiller and Coors in the beer 
industry. Pepsi-Cola’s attempt to acquire Dr. Pepper 
and Coca-Cola's bid for 7-Op, which the Administration 
successfully challenged, probably would have sailed 
through if Judge Bork’s rules applied. It is doubtful 
that the merger of LTV and Republic Steel, which this 
Administration also successfully challenged, would even 
have been investigated. 

We would see a different sort of country if 
companies in every segment of the economy were permitted 
to merge down to two or three giant firms without fear 
of antitrust exposure. Perhaps the economy would be 
more efficient as Judge Bork expects, although that 
seems doubtful. But the political consequences of that 
kind of economic concentration, which Judge Bork (but 
not Congress) dismisses as irrelevant, would be 
considerable. 

b. Vertical and conglomerate mergers . 

Judge Bork believes that conglomerate and vertical 
mergers are rarely appropriate targets for antitrust 
review. He argues that such combinations are entirely 
efficiency creating^- 9 and harmless to competition 


19 


Antitrust Paradox at 226. 



3458 


- 16 


because they merely internalize within the firm 
transactions that otherwise would occur in the market. 20 

In fact, antitrust enforcement against vertical 
and conglomerate mergers has become more lenient, partly 
because of the scholarly criticism by Judge Bork and 
others of previous unduly restrictive opinions. But the 
courts have not suggested that vertical and conglomerate 
mergers never (or almost never) produce anticompetitive 
effects. Judge Bork's rather single-minded focus on 
"efficiency" leads him to take a more extreme position 
than those who would argue for a more lenient 
approach. 21 

c. Resale price maintenance . Under 
present law, an agreement between a manufacturer and its 
distributors specifying the price at which the 
distributor must sell is illegal. Partly because of 
Judge Bork's insightful scholarship, there has been a 
lively debate in the literature as to whether an 
absolute rule of illegality should apply, or whether a 


20 Id at 227. 

2 * In Antitrust Paradox , Judge Bork admitted the "faint 
theoretical" possibility that a truly vertical merger 
might be a tool of predation for some firms. Antitrust 
Paradox at 226. But he would declare such mergers 
unlawful under Section 2 of the Sherman Act (that is as 
"monopolizing") only "when the acquiring firm has at 
least a market share of, say 80% and specific intent to 
monopolize can be proved." Id at 238, note* (emphasis 
in original). That is the practical equivalent of 
declaring vertical mergers legal per se . 



3459 


- 17 - 

more flexible balancing test {called a "rule of reason") 
would be more appropriate. 22 When the Supreme Court has 
been asked to overrule its earlier position that resale 
price maintenance is illegal per se , it has either 
explicitly ratified its earlier strict view“ or 
declined to entertain the question. 24 For most 
commentators then the question is whether there should 
be a rule of strict, or per se , illegality or a 
balancing test. Judge Bork, more extreme again, urges a 
rule of absolute legality. 

Why should manufacturers have the right to 
control the price at which their dealers sell? In Judge 
Bork’s view, higher prices will permit distributors to 
provide more services, and manufacturers have a better 
sense of which services consumers prefer. If the 
manufacturers are prevented by the antitrust laws from 


22 Compare Posner, Antitrust Policy in the Supreme 
Court: An Analysis of the Restricted Distribution, 
Horizontal Merger and Potential Competition Decisions , 

75 Colum. L.Rev. 282, 283-99 (1975) with Pitofsky, In 
Defense of Discounters: The No-Frills Case for a Per Se 
Rule Against Vertical Price Fixing , 71 Georgetown L.J. 
1487 (1983). 

Dr. Miles Medical Co. v. John D. Park & Sons Co. , 

220 U.S. 373 (1911). 

23 Continental T.V. Inc, v. GTE Sylvania Inc. , 433 U.S. 
36 (1977) (51 n. 18). 

24 Spray Rite Service Corp. v. Monsanto Co. , 462 U.S. 
752 (1984). 



3460 


- 18 - 


keeping prices high, price cutting discounters will 
drive service-oriented establishments out of the market. 

The conservative analysis has many flaws. First, 
it is difficult to follow why required higher prices 
will lead to more services and not simply to the 
pocketing of profits by manufacturers and dealers. 
Second, it may be somewhat outdated to argue that 
discounters provide few or no services. Third, if 
services really are desired, it is hard to see why the 
manufacturer would have a better sense of that than 
retailers who are closer to the consumer market. 

Finally, one can't help wondering why required higher 
prices to consumers (at best, to insure the provision of 
services that many of them don't want) is an example of 
"consumer welfare." 

Even if Congress and the Supreme Court have been 
wrong for decades in their hostility to resale price 
maintenance, it is worth noting that Judge Bork's 
solution is not a flexible rule of reason but per se 
legality. It is another example of why Judge Bork, even 
among conservative antitrust analysts, can be regarded 
as extreme. 

d. Other vertical restraints . Aside from 
vertical price fixing, there is a wide assortment of 
other restrictions that manufacturers occasionally seek 
to place on their dealers. For example, dealers can be 



3461 


- 19 - 

directed as to where they can sell ("territorial 
allocation"), what lines of product they may carry 
("exclusive dealing"), and what other products they must 
carry as a condition of taking a particular brand ("tie- 
in sales”). All of these arrangements are subject under 
current law to various kinds of balancing tests, and are 
legal or illegal depending on the size of the 
manufacturer, duration of the contract, business reasons 
for the arrangement, and other factors. 

Once again. Judge Bork recommends sweeping away 
decades of Supreme Court law on the subject and would 
declare all vertical contractual arrangements legal per 
se.^ The result would be a distribution system in 
which wholesalers and retailers could be placed almost 
entirely under the thumb of their suppliers, and a 
market in which producers of new products could find it 
difficult to begin business unless they undertook 
distribution of their own products. Bork's view, more 
extreme than any suggested in any Supreme Court 
decision, would simply abolish antitrust enforcement in 
all of these areas. 


25 


Antitrust Paradox at 299, 309. 



3462 


- 20 - 

Conclusion 

For almost 100 years, antitrust has served the 
country well by checking the tendency in a market 
economy toward concentration of economic power without 
unnecessarily stifling innovation and efficiency. There 
are important differences about the merits of particular 
policies, but the essential features of antitrust 
enforcement have enjoyed wide bipartisan support. 

Robert Bork has challenged the central logic of 
antitrust enforcement efforts. It has been said in his 
defense that his scholarship is formidable (which it 
is), and that it has been influential at enforcement 
agencies and the courts (which it has). 

But that's not the point. The question should be 
where does his scholarship lead. In Robert Bork's case 
it is to an antitrust program more conservative than 
proposed by almost anyone else. He supports anticartel 
efforts and would abandon almost all of the rest of 
antitrust. When challenged that his minimalist program 
is inconsistent with the will of Congress and with 
scores of Supreme Court cases, he has derided the 
ability of Congress to think clearly about economic 
regulation and he has urged that precedent inconsistent 
with his views be ignored. The claims on behalf of 
Judge Bork that he is a respecter of the will of the 
legislature and an exponent of judicial restraint are 



3463 


- 21 - 


difficult to maintain when his record in the antitrust 
field is taken into account. 



3464 


The Chairman. Before I begin my questioning, Mr. Maxwell 
Blecher, a well-known antitrust lawyer from Los Angeles, who was 
here yesterday to testily on this panel, could not stay today, and 
his statement will be placed in the record after Dean’s comments. 
[The statement of Mr. Blecher follows:] 



3466 


STATEMENT OF MAXWELL M. BLECHER IN 
OPPOSITION TO THE NOMINATION OF 
JUDGE ROBERT H. BORK AS ASSOCIATE 
JUSTICE OF THE SUPREME COURT 

I practice law in Los Angeles with Blecher & 

Collins and am one of the founding directors of the 

1 / 

Committee to Support the Antitrust Laws ("COSAL"). 

I thank the Chairman and the Committee for the opportu¬ 
nity to express opposition to the nomination of Judge 
Robert H. Bork as an Associate Justice of the Supreme 
Court. 

The bulk of my practice consists of representing 
victims of antitrust violations in court, frequently on a 
contingency fee basis. Antitrust has experienced an 
evolution in my 32 years of practice. However, as I have 
testified in the past — contrary to the opinions of some 
of my colleagues — I think the state of antitrust is, by 
and large, healthy, while it is true that the Supreme 
Court in recent years has erected some formidable obstacles 
to a plaintiff's recovery, the Court has adopted a delicate 
and fair approach to antitrust, balancing the rights of 


1/ The Executive Committee of the Comnittee to Support 
the Antitrust Laws voted to oppose the nomination. 

Two member law firms abstained on the grounds that they 
anticipated having cases in the Supreme Court in the near 
future and wished to avoid the appearance, however, in¬ 
correct, of judge shopping. 






3466 


consumers, small business, and big business. The Court 
has been sensitive to the shift from public to private 
enforcement of the antitrust laws and has attempted to 
accommodate that transition while preserving the purpose 
and integrity of the antitrust laws. There is no reason 
to believe that any opinion of the Court in recent years 
has been decided in accordance with any particular 

ideology? nor has the Court questioned the values which 

2 / 

the antitrust laws protect. Even when it has overruled 
prior opinions, the Supreme Court also has acted cautiously, 

confining its views to the practice at hand and carefully 

3/ 

acknowledging the role of precedent. The Court has acted 
in its best traditions commanding respect even from those 
who cannot always agree. 

The confirmation of Robert Bork would undermine 
the Court's approach. I am thoroughly familiar with Robert 
Bork's extensive writings in the antitrust law, most 
particularly The Antitrust Paradox . These writings show 
conclusively that, unlike the current members of the Supreme 
Court, he has "an axe to grind." Given free rein, he would 
eliminate most of the protections for consumers, small 


2 / Opinions such as FTC v. Indiana Fed’n of Dentists, 

476 U.S. 447 (1986)? Catalano, Inc. v. Target Sales, 

Inc., 446 U.S. 643 (1980); and National Soc’y of Professional 
Engineers v. United States, 43S U.S. 679 (1978), are clearly 
not hostile to antitrust. 

3/ See continental T. V., Inc. v. GTE Sylvania, Inc., 

“ TI3 u.s. 36 (1977). 


- 2 - 



3467 


businesses, innovators and discounters embodied in the 
antitrust laws. The vast majority of The Antitrust 
Paradox is a series of attacks on the opinions of the 
Supreme Court, the institution to which he has been 
nominated to serve, and the enactments of Congress, the 
institution whose enactments he would be called upon to 
interpret. The basis of his attacks is his reliance on 
an unproven and false premise that the exclusive purpose 
of the antitrust laws is (I emphasize not should be . but 
is ) the promotion of business efficiency. Using this 
incorrect premise as a foundation. Judge Bork proceeds 
to urge evisceration of 90% of the antitrust laws as 
determined since 1890, All vertical restraints - 
including resale price maintenance - would be legal per 
se . Virtually all mergers would be legal. Monopoly 
law as now known, would disappear. In short. Judge 
Bork's defined antitrust agenda is tantamount to repeal 
of the antitrust laws. That disaster to our economic 
system must be avoided and Judge Bork must be denied the 
opportunity to implement this dangerous anti-antitrust 
philosophy. 

The Antitrust Paradox is a formidable treatise 
consisting of three major parts, twenty-two chapters and 
an appendix on the efficiencies of price-fixing and 
market division. It is a comprehensive treatment of a 
multitude of important subjects. A line-by-line analysis 


- 3 - 



3468 


is, obviously, impossible in a presentation of this length. 

I think that the Committee can understand at least in broad 
strokes just how radical and dangerous Judge Bork's views and 
analytical techniques are by examining briefly three 
specific aspects of the treatise: 

1. His views on resale price maintenance and 
mergers; 

2. His recommendations; and 

3. His basic premise that corporate efficiency 

is the only goal of antitrust. 

In 1911, in the landmark case of Dr. Miles Medical 
4/ 

Co. v. John D. Park & Sons Co, , the Supreme Court estat-. 

that resale price maintenance was per sa illegal under the 

antitrust laws. Mr. Justice Hughes recognized the clear 

public benefit deriving from the competition of discounters 

in the distribution chain: "{The supplier] having sold its 

product at prices satisfactory to itself, the public is 

entitled to whatever advantage may be derived from competi- 

5/ 

tion in the subsequent traffic." A recent empirical 
study by the staff of Senator Metzenbaum concluded that 
"a consumer could save 30% on clothes, 22% on electronics, 
and 11% on children's toys by shopping for selected items 
is discount stores rather than nondiscount stores." 


4/ 220 U.S. 373 (1911). 

£/ Id. at 409. 

6 / "Discounting the Family Budget", appended to Opening 

Statement of Senator Howard M. Metzenbaum, April 23, 1917. 

-4- 



3469 


Clearly, it is in the public interest that the antitrust 
laws protect discounting through vigorous application of 
the per se rule. 

The Supreme Court and Congress agree. Even 
though the Supreme Court has changed the law to make the 

7/ 

Rule of Reason applicable to non-price vertical restraints 

and has created special, heightened evidentiary requirements 

£/ 

in some vertical price-fixing cases, it has carefully 
preserved the protection of the per se rule, reiterating 
it at least eleven times in the past seventy-six years, 

V 

most recently earlier this year. 

Congress has taken the same view. After the 

Department of Justice urged the Supreme Court to weaken 
10 / 

the per se rule. Congress passed a series of appropria¬ 
tions limitations prohibiting the Department of Justice 


]_/ Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 

36 (1977). 

8/ Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 
(1984). 

9/ 324 Liquor Corp. v. Duffy, 107 S. Ct. 720 (1987); 

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 
(1984); Rice v. Norman Williams Co., 458 U.S. 654 (1982); 
California Retail Liquor Dealers Ass'n v. Midcal Aluminum, 

Inc., 445 U.S. 97 (1980); Simpson v. Union Oil Co., 377 U.S. 

13 (1964); United States v. Parke, Davis 6 Co., 362 U.S. 29 
(1960); Kiefer-Stewart Co. v. Joseph E. Seagram 6 Sons, Inc., 
340 U.S. 211 (1951); United States v. Line Material Co., 333 
U.S. 287 (1948); FTC v. Beech-Nut Packing Co., 257 U.S. 441 
(1922); United States v. A. Schrader's Son, Inc., 252 U.S. 

85 (1920); United States v. Colgate t Co., 250 U.S. 300 (1919). 

10/ Brief for the United States as Amicus Curiae, Monsanto 
Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984). 


5 



3470 


U/ 

from expending public funds to alter it. when the 

Antitrust Division issued its "Vertical Restraints 
12 / 

Guidelines," Congress passed a resolution calling for 

their withdrawal and reaffirming its commitment to the 

13/ 

per se rule of Dr. Miles. As recently as August 6, 

1987, this Committee overwhelmingly approved a compromise 
version of S. 430, 100th Congress, 1st Sess., which would 
codify the per se rule. 

Much of the congressional concern is in response 

to the current view of the Department of Justice that 

price-fixing should be considered under the Rule of Reason 

and should be afforded the same Rule of Reason treatment 

14/ 

as non-price restraints after Sylvania . I think it's 

fair to say, if nothing else, that Congress has repeatedly 
rejected this Department's view. 


1 1/ For FY 1984, Section 510 of the Departments of Commerce, 
Justice, and State, the Judiciary, and Related Agencies 
Appropriation Act, 1984, Pub. L. No. 98-166 (1983), contained 
such a limitation. Similar limitations were passed for FY 
1986 and FY 1987. See Section 605 of the Departments of 
Commerce, Justice, and State, the Judiciary and Related 
Agencies Appropriation Act, 1986, Pub. L. No. 99-180 (1985); 
Continuing Appropriations, Fiscal year 1987, Pub. L. No. 
99-591 (1986). 

12/ 5 Trade Reg. Rep. (CCH) 1 50,473 (Jan. 23, 1985). 

13 / Section 605 of the Departments of Commerce, Justice, 
and State, the Judiciary and Related Agencies Appro¬ 
priation Act, 1986, Pub. L. No. 99-180 (1985). 

14/ See, e.g. . Brief for the United States as Amicus 

Curiae at 19-29. Monsanto Co. v. Spray-Rite Serv. 

Corp., 465 U.S. 752 (1984) . 


6 



3471 


Judge Bork's position is an order of magnitude 

more extreme than that of the Department of Justice. There 

is no question that he, like the Department of Justice, 

would like to overrule Dr. Miles . In his words: 

It is rarely possible to identify one 
decisive misstep that has controlled 
a whole body of law. A single para¬ 
graph in Justice Hughes's 1911 Dr. 

Miles opinion is such an instance, 
however, and the law of resale-price 
maintenance and vertical market division 
has been rendered mischievious and 
arbitrary to this day by the premise 
laid down there.il' 

He would apparently go way beyond the Department of Justice's 

position and that of the Sylvania court to make every vertical 

restraint per se lawful. He writes that "every vertical 

16/ 

restraint should be completely lawful," and that the law 

"should abandon its concern with such beneficial practices" 

11 / 

as "vertical price maintenance and market division." 

The rule of per se legality would, if adopted, 
cause tremendous repercussions throughout the American 
economy. Even the most powerful discounters would be at 
peril. Price-cutting would not be an acceptable way of 
market entry. Competition in the distribution chain would 
diminish and prices would rise. 


15/ Robert H. Bork, The Antitrust Paradox: A Policy at War 
with Itself, (New York: Basic Books, Inc., 1978) at 32 
(footnote omitted) (hereinafter referred to as The Antitrust 
Paradox ). 

16/ Id. at 288. 

17/ Id. at 406. 


- 7 - 



3472 


Judge Bork's position on merger policy is 
similarly radical. The primary danger from mergers is 
that they will lead to concentration and eventually 
industrial stagnation. The results can and do have 
macroeconomic consequences for the entire economy. For 
example, in their new book. The Bigness Complex . Professors 
Walter Adams and James W, Brock demonstrate how consolida¬ 
tions in the steel industry led to concentration, which in 

18/ 

turn led to problems in innovation. 

Because of the uncertainty of determining just 
how much concentration is harmful and because the problems 
of stagnation are so serious. Congress in 1950 passed the 

11 / 

Celler-Kefauver Amendment to Section 7 of the Clayton Act. 

And a Republican administration embarked on a vigorous 
program of enforcement. 

Judge Bork believes that the law should "abandon 
its concern" with "small horizontal mergers" and "all 
veritcal and conglomerate mergers"; the only mergers of 
concern should be " Ihjorizontal mergers creating very 
large market shares (those that leave fewer than three 


18 / Walter Adams and James W. Brock, The Bigness Complex: 

Industry, Labor and Government In the American Economy 
(New York: Random House, 1986) at 34-37, 57-59 (hereinafter 
referred to as The Bigness Complex ). 

19/ 15 U.S.C. S 18 (1950). 


- 8 - 






3473 


20 / 

significant rivals in any market)." Thus, it would 

apparently be acceptable to Judge Bork if all of the 

firms in the United States merged into three firms — 

as long as each was a "significant rival” in each market. 

The extreme nature of Judge Bork's proposals is 

clear from comparing them with the 1984 merger guidelines 

21 / 

of the Reagan administration. Those guidelines, it 

will be recalled, employ the Herfindahl-Hirscham Index 

(HHI) of summing the squares of individual market shares 

to judge concentration and the dangers produced by a 

proposed merger. The merger guidelines say that an HHI 

above 1800 shows a "highly concentrated" market and that 

"[additional concentration resulting from mergers is a 

22 / 

matter of significant competitive concern." Under Judge 
Bork's view, a merger that produced three "significant 

23/ 

rivals” in a market would produce a minimum HHI of 3333, 
nearly twice the threshold contained in the merger guide¬ 
lines. If the market shares are 50%, 30% and 20%, the HHI 


20 / The Antitrust Paradox at 406. At another point, he 
states that "mergers up to 60 to 70 percent of the 
market should be permitted. ..." Id . at 221. 

21/ U. S. Department of Justice, Merger Guidelines - 1984, 
2 Trade Reg. Rep. (CCH) 1 4490-95 (June 4, 1984). 

22/ Id. at % 4493.101. 

23/ The minimum HHI is based upon equal market shares of 
33.33%. The square of 33.33 is 1111. There would be 
three firms, so the total HHI would be 3333. 


9 - 



3474 


would be 3300, over twice the 


24/ 

dangerous threshold. 


merger guidelines' 


most 


I am among those who have criticized the guide¬ 
lines themselves as being too lax. In comparison with 
Judge Dork’s views, they appear stiff indeed. Judge 
Bork's views on merger and concentration are a radical 
prescription for industrial disaster. 

25/ 

Judge Bork's essential recommendation is 

that to the degree his theories are correct, the "law 
26/ 

requires reform." Judge Bork himself recognizes that 

his own peculiar view of antitrust cannot co-exist with 

current law. How much "reform'' is "require [dj "7 

Massive reform. Resale price maintenance 

(indeed, all vertical restraints) and mergers are but two 

prominent, easily understandable examples. According to 

Judge Bork, the law should have but three concerns “(tlhe 

suppression of competition by horizontal agreement," 

"[h]orizontal mergers creating very large market shares," 

27/ 

and "[d]eliberate predation.” He writes that 


24/ Under Judge Bork’s most permissive interpretation, which 
would permit a single firm market share of 60-70%, see 
note 21, supra , the single firm HH1 would be in the 3600- 
4900 range. 

25 / Bork's recommendations are collected in Chapter 21 of 
The Antitrust Paradox at 405-07. 

26/ Id. at 405. 

27 Id. at 405-06. 


- 10 - 



3475 


the law should abandon its concern 
with such beneficial practices as 
small horizontal mergers, all vertical 
and conglomerate mergers, vertical 
price maintenance and market division, 
tying arrangements, exclusive dealing 
and requirements contracts, "predatory" 
price cutting, price "uiscrimination,“ 
and the like. Antitrust should have 
no concern with any firm size or 
industry structure created by internal 
growth or by merger more than ten years 
old. 28 / 

Judge Bork would, quite literally, discard the 

majority of the antitrust laws of the United States, 

leaving in tact only the prohibition against horizontal 

price-fixing and market division. 

The major central premise of all of Judge Bork's 

theories is that the courts have failed to give sufficient 

deference to the concept of "business efficiency," as he 

defines it. He writes: 

Modern antitrust has performed this task 
{the task of differentiating between 
harmful and benficial practices) very 
poorly. . . . There are many problems 
here, but perhaps the core of the 
difficulty is that the courts, and 
particularly the Supreme Court, have 
failed to understand and give proper 
weight to the crucial concept of 
business efficiency.11/ 


28/ Id. at 406. 

29/ The Antitrust Paradox at 7. Significantly, the debate 
in antitrust is not between those who favor efficiency 
and those who do not. There is a significant disagreement 
about what types of market conditions lead to efficiencies. 
The Bigness Complex is essentially a lengthy empirical study 
that concludes that the Jeffersonian ideal of dispersed 
power is also efficient and economically sensible. 


- 11 - 


88 - 37*1 0 - 89-25 



3476 


After equating business efficiency with consumer welfare," 
Judge Bork concludes that it is the only purpose of the 
antitrust laws: 

The only goal that should guide 
interpretation of the antitrust laws 
is the welfare of consumers. Departures 
from that standard destroy the con¬ 
sistency and predictability of the law; 
run counter to the legislative intent, 
as that intent is conventionally derived; 
and damage the integrity of the judicial 
process by involving the courts in 
grossly political choices for which 
neither the statutes nor any other , 

acceptable source provide any guidance .—■ 

For Judge Bork to assert that efficiency as he defines it 

should be the only goal of antitrust is, in my view, a 

mistaken proposition. To suggest that it is the only 

purpose is a fanciful misreading of the antitrust laws 

that is frightening when its source is a nominee for the 

Supreme Court. Although I am not an historian, X am 

confident that the drafters of the Sherman Act were not 

motivated by a feeling that the monopoly trusts were 

inefficient. Rather, they were concerned among other 

things about limiting the power of industrial behemoths 

and providing fair business opportunities to imaginative 

entrepreneurs and small businesses. Hans Thorelli, the 

author of definitive study of the legislative history of 


30/ Id. 

31/ Id. at 405. 


- 12 - 



3477 


antitrust, has written that Congress had in mind as the 

“immediate beneficiaries" of the legislation 

the small business proprietor or 
tradesman whose opportunities were 
to be safeguarded from the dangers 
emanating from these recently-evolving 
elements of business that seemed so 
strange, gigantic, ruthless and awe¬ 
inspiring. 

Many scholarly commentators have reviewed the same 

legislative history and reached the conclusion that Judge 
33/ 

Bork is wrong. 


CONCLUSION 

Antitrust is central both to the preservation of 
a competitive economic system and the preservation of our 
liberties. Judge Bork would eviscerate and effectively 
repeal the antitrust laws because of his erroneous view 
that they are concerned only with efficiency. Judge Bork's 
radical views are a serious threat to the continued viability 
of this important body of law. As a Suprme Court justice he 
could seek to implement a carefully documented ideology to 
overrule long established precedents and fundamentally alter 
our economic system. I respectfully submit that you should 
reject this nomination. 


32/ H. Thorelli, The Federal Antitrust Policy: Origination 
of an American Tradition , 227 (1955). 

33/ See, e.g. , Lande, Wealth Transfers as the Original and 

Primary Concern of Antitrust: The Efficiency Interpreta ¬ 
tion Challenged - ] 34 Hastings L. J. (>7 (1982); Fox, The 
Modernization of Antitrust; A New Equilibrium , 66 Cornell 
L.Rev. 1140 (1981); Schwartz, Justice and Other Non-Economic 
Goals of Antitrust . 127 U. Pa. L. Rev. 1076 (1979); Pitofsky, 

The Political Content of Antitrust , 127 U. Pa, L. Rev. 1051 
(1979); Elzinga, The Goals of Antitrust: Other Than Competition 
And Efficiency. What Else Counts . 12g~~U. Pa. L. Rev. 1191 (1977). 


-13 









3478 


Senator Metzenbaum. While you are putting statements in the 
record, may I put in a statement from Lawrence A. Sullivan, Earl 
Warren Professor of Public Law at Boalt Hall School of Law, Uni¬ 
versity of California at Berkeley, as well as a statement from 
Herman Schwartz, Professor of Constitutional Law at the Ameri¬ 
can University in Washington and former chief counsel to the 
Senate Antitrust and Monopoly Subcommittee. I would like to put 
both those statements in the record. 

The Chairman. Without objection. 

Senator Metzenbaum. Thank you. 

[The statements of Mr. Sullivan and Mr. Schwartz follow:] 



3479 


September, 1987 


Statement of 
Lawrence A. Sullivan 
Earl Warren Professor of Public Law 
Boalt Hall School of Law 
Berkeley, California 94720 


Before the Senate Judiciary Committee, 
Hearings for the Nomination of 
Robert Bork for 
Justice of the United States 
Supreme Court 


1 



3480 


judge Bork has strong views about what is good antitrust law 
and what is bad antitrust law. For example, he thinks allowing 
resale price maintenance would be good, forbidding it is bad; 
always allowing tying agreements and exclusive contracts would be 
good, restricting them is bad; allowing mergers so long as there 
remain in the industry two or three viable firms would be good, 
forbidding mergers before concentration reaches such an extreme 
is bad. 

Judge Bork justifies these and like views with Chicago 
school economic theory. Be thinks efficiency should be the only 
goal of antitrust law; he thinks market conduct is efficient 
unless it causes a reduction in output; and he thinks that 
vertical restraints like resale price maintenance, and mergers 
short of near monopoly do not reduce output. 

As academic theories, these views are interesting. In the 
Bork book and articles they are well argued. Other antitrust 
analysts learned something by reacting to them. In the end, most 
people not committed to the Chicago ideology find them to be 
wrong, at least in the sense of being over-simplifications and 
too extreme. Nonetheless, if Judge Bork stopped at the point of 
saying what he thinks the law ought to be, one might not object. 

But that is not where he stops. Rather his books and 
articles and public statements assert that Congress intended the 
antitrust laws to do just what Judge Bork thinks they ought to do 
and nothing more. That proposition presents difficulties. One 
problem is that there are several important Supreme Court cases 
that hold otherwise, cases which Judge Bork asserts are wrong and 


2 



3481 


should be overruled; and presumably he would vote that way if 
confirmed. 

If the legislative history of the antitrust laws supported 
the Boric view, that, too, would be a plausible position. However 
the legislative histories of the major antitrust statutes give 
little support to the Bork thesis. The sole concern of Judge 
Bork is efficiency, primarily allocative efficiency. The central 
concern of the Congress that passed the Sherman Act was not 
efficiency at all, and no one in that Congress had ever even 
heard of allocative efficiency. The dominant Congressional 
concern was that monopoly power was being used to gouge consumers 
and suppliers and to coerce weaker competitors. The Congress 
that passed the Clayton Act was not indifferent to vertical 
restraints like tying; it was convinced that they could foreclose 
competitors from a market; it wanted that stopped. So, too, with 
the merger law. The Congress that passed the Celler-Kefauver Act 
wanted to stop industrial concentration long before the point at 
which only two or three viable firms are left. It wanted to stop 
the concentration process in its incipiency. 

Judge Bork presents himself, and his supporters present him, 
as an exponent of judicial restraint. That is a very respectable 
position. It is one with wide appeal. It was the approach, for 
example, of Justice Frankfurter. He was consistent. He would 
not manipulate legislative history or invent constitutional 
doctrine to frustrate the legislative majority, whatever the 
political complexion of that majority at a particular time. But 
the reading which Judge Bork gives to the legislative histories 


3 



3482 


of the antitrust statutes is not the reading one would expect 
from a judge who is seriously seeking to determine the original 
intent of Congress. It is a result-oriented reading. It is a 
reading aimed at making the statutes do what Judge Bork, the 
theoretician, thinks they ought to do, and nothing more, it 
would be reassuring if the Bork book and articles could be 
dismissed as the contribution of an eager and lively young 
scholar to the academic debate. But they cannot be. They are 
the views of Bork, the mature scholar; and they were vigorously 
reasserted last November 15 in a public address at the 
Association of the Bar of the City of New York by Judge Robert 
Bork a potential Supreme Court nominee (See Exhibit A, 
attached). 

Moreover, Judge Bork's judicial activism doesn't stop with a 
strained reading of legislative history. Be has a back-up 
position. In that November, 1986 address he told the lawyers in 
attendance that his minimalist reading of the antitrust laws is 
the only reading that can save those laws from 

unconstitutionality. His claim is a startling one. He says that 
if Congress meant the Court to take into account considerations 
such as the loss of local control or other like effects of the 
excessive concentration of economic power — (factors which the 
Supreme Court has said Congress did intend to be taken into 
account) — then the Court must refuse to do so. It doesn't 
matter how clear the expression of Congressional intent may be. 
Judge Bork asserts that if Congress in a statute obliges the 
Court to weigh and balance several competing factors before 


4 



3483 


coming to a judgment, the Court must refuse. He says that 
weighing and evaluating a set of factors and coming to a judgment 
is a legislative, not a judicial, function. For the Court to 
perform such a function would be a breach of the separation of 
powers and therefore unconstitutional. In short. Judge Bork 
discovers not in the language of the Constitution, but somewhere 
in the space between one Article and another, an implication that 
courts may not do the task which Congress in the antitrust laws 
turned over to them, and which courts have been successfully 
doing for decades. 

Separation of powers, the doctrine that Judge Bork uses for 
this purpose, has less basis in the language of the Constitution 
than does the broad right of privacy which he disdains as 
invention. Hot only that, he turns that doctrine on its head. 

The separation of powers doctrine has never implied that courts 
may not engage in balancing. Courts are not computers that must 
be precisely programmed by the legislature. They never have been 
and never could be. The very essence of the judicial function is 
to evaluate and to judge. 

Nor does the result-oriented activism of Judge Bork end when 
he finds a reason why the antitrust laws, if read as Congress 
intended, would be unconstitutional. No, Judge Bork goes on and 
discovers a way to save them from that fate. Remarkably, it 
turns out that the only way to protect the antitrust laws from 
condemnation is for the courts to ignore every other factor 
Congress wanted weighed and to consider only economic efficiency 
(which Judge Bork callB "consumer 


- 5 




welfare*), it is quite a conjuring trick. Constitutionality is 
preserved when the Court refuses to follow the original intent of 
Congress and, instead, construes the antitrust laws to do 
precisely what they would have done had they been drafted by 
Judge Bork. 

All of this may be creative constitutional scholarship. But 
it is not an expression of judicial restraint. If Judge Bork 
were to act on the bench in the way that his November speech 
asserted that the Court should act, he would be engaging in the 
most rampant kind of judicial activism. He would not be 
interpreting the Constitution. He would be converting it into a 
Rorschach inkblot into which he could read his own policy views. 



3485 



Comments by The Honorable Robert H. Bork 

Milton Handler has asked that I focus on the subject of the 
goals of antitrust and since I am in substantial agreement with 
Don Turner about that I could save us all a lot of time by just 
agreeing and sitting down. However, on the platform with us, 
fortunately for purposes of dramatic affect, we have one of the 
foremost exponents of the view that judges may consider non¬ 
economic goals in deciding antitrust cases. 1 refer to Dean 
Pitofsky. How it is kind of unfair of me to pick on him, it’s 
kind of unfair of me even to identify him, in this respect. 
(Laughter) But he is here and 1 will use him as a proxy for the 
people 1 really want to argue with. 

Antitrust thinking has changed a great dtol in the past few 
years and undcubtably will change again. Tnere is not only the 
possibility of new legislation but there is the certainty that 
economic analysis will continue to evolve and as it does the 
rules of antitrust will follow. But the present shift in 
antitrust enforcement is due at least in part to a dramatic shift 



3486 


ScnBrmk*, svb, 00/18/67. 2 

in judicial perceptions of the goals of antitrust policy. It was 
routinely said not long ago that the goals of antitrust were not 
exclusively economic, that judges should bear political and 
social values in mind in reaching decisions. Today it is 
commonly said that they are, that the goals of antitrust are 
exclusively economic. in a sense that the only goal is the 
maximization of the welfare of the consumers. The question is 
whether this aoal may properly evolve or change as economic 
analysis wil do in framing rules. 1 think not. Here I wish to 
make a decidedly perverse suggestion, one that will be regarded 
by economists and their fellow travellers as heretical. It is 
this. On these subjects in antitrust, law is a more rigorous and 
unchanging discipline than is economics. Hence it is proper that 
the substantive rules of the law evolve as economic understanding 
progresses. But it is not proper that the goal of antitrust 
change because under our form of government the considerations of 
lau that determine that goal are permanent. 

Now as I said, I will use Dean Pitofsky as an 
illustrat ion. He begins his provocative article. The Political 
Content of Antitrust , by asserting (thatl the issue among serious 
people has never been whether nod-economic considerations should 
outweigh significant long tern, economies of scale but rather 
whether they had any role to play at all, and if so, how they-- 
that is the political goals~-snould be defined and measured. I 
relieved to hear that that was not an issue among serious people, 
but that does drop Learned Hand, Earl Warren and William 
O'Douglas Into an unfortunate category. (Laughter) 



3487 


SchBrmks, evti, 08/18/87. 3 

Now Dean Pitofsky specifies the political values he wants 
applied, first, a fear that excessive concentration of economic 
power will breed anti democratic political pressures. Second, a 
desire to enhance individual and business freedom by reducin 9 the 
the range within which private discretion by a few in the 
economic sphere controls the welfare of all. (I am still quoting 
from the Dean.) Third, an overriding political concern is that 
if the free market sector of the economy is allowed to develop 
under antitrust rules that are blind to all but economic 
concerns, the likely result will be an economy so dominated by a 
few corporate giants that it will be impossible for the state not 
to play a more intrusive role in economic affairs. My objection 
to all of this is not primarily that the political values listed 
are extremely amorphous or even if they are wrong as a matter of 
fact, as is certainly true of the prediction that the likely 
result of efficiency in an economy is an economy dominated by a 
few corporate giants. 

The Dean rests his argument essentially upon legislative 
intent. He says an antitrust policy that fails t^, take political 
concerns into account would be unresponsive to tne will of 
Congress and out of touch with the rough political consensus that 
has supported antitrust enforcement for almost a century. Now I 
have time constraints, and 1 wont pause to argue as I have 
elsewhere, that the legislative history of the various antitrust 
statutes contains little or nothing that suggests that judges 
should use political considerations to make decisions. Nor will 
1 repeat the other arguments about the text of the statutes and 



3488 


SChBrmks, &vb, 08/16/87. 4 

the structure of the law and the distinctions it stakes. It 6eems 
to me that when one looks at the academic literature which 
purports to find the direction the courts to take the political 
values into account, it really ignores the arguments from text, 
structure, and so forth, in favor of extracting snippets of 
rhetoric about grand values from the legislative history. And 
there certainly is rhetoric about very large values in the 
legislative history. 

But 1 want to go further, and urge that if all of these 
arguments that I have made in the past and wnich 1 skim over here 
did not exist and if everything said by the proponents of 
mulciple goals of political goals of the antitrust laws, if all 
of that were true, it would not matter, once it is admitted that 
is, if Congressmen explicitly they said they wanted courts to 
weigh political values against the economic welfare of consumers, 
it would not matter. Once it is admitted that a major component 

of antitrust policy is the welfare of consumers, and I think 

almost every one admits that, it follows, I think, that consumer 

welfare must be the exclusive goal of the law. 

And the argument here, of course, is constitutional and I am 
speaking about separation of powers. We ail know that the 
separation of powers often requires courts to refuse to do things 
that Congress explicitly directs them to do. Separation of 
powers underlies the Article III standing concept, the political 
question doctrine, and so on. It also underlies the current 
debate about how judges should approach the Constitution, the 
current debate about original intention, the current debate about 



3489 


SchBrmks, svb, 06/18/87. 5 

whether judges nay create new rights not to be found in the 
textual or historical Constitution. 

And indeed. 1 think that the common view of courts at work 
here. I think the view that judges should take rhetoric 
discussion of political consequences out of the legislative 
history, and proceed to weigh political concerns as they define 
them against economic welfare, it is really the same kind of 
function that is advocated when judges are urged to make up new 
constitutional rights out of moral philosophy or some other 
source. 1 think it is, in both cases, a function that is 
forbidden by the concept of separation of powers which involves 
what Warth against Seldin said concern about the proper and 
properly limited role of courts in a democratic society. Now 
antitrust once had a theory of this sort, but 1 skip over those 
cases because of time and we are running late, but to illustrate 
what I mean by the separation of powers concerns which prevent 
Courts trom taking any political or social values into account in 
applying the antitrust laws, let me hypothesize two very 
different states of legislative intent. 

In the first hypothetical state of intent. Congress clearly 
indicates in the debates that the courts are to protect 
consumers, they are also to protect small business and they are 
also to protect political democracy. In cases of conflicts 
between those values the courts are to assess the relative 
importance of the values and to arrive at decisions that achieve 
the best balance. You will recognize that as what is the "in 
effect" direction that many commentators think that Congress gave 


the courts. 



SchBr inks, svb, 08/16/87 


b 


In my second hypothetical state ot intention, Congress 
clearly indicates that imports are hurting American business, 
they're restraining trade, damaging small business, and that 
courts are to entertain suits by American firms against 
importers, to decide which American industries require 
protection, and impose tariffs that balance the conflicting 
interest involved including the interests of consumers. 

1 think there is no doubt that no court would accept that 
second delegation to think about, to balance consumer welfare, 
industry welfare and so forth and write tariffs. That would 
impose a non-judicial task forbidden by the separation of powers, 
the very kind of delegation courts have refused many times in the 
past. 

But returning to the first hypothetical in which the court 
had to balance political values against economic values, is there 
really any doubt that that imposes precisely the same kind of 
non-judicial duty? I think the only difference is it is 
legislation. What it imposes is wide open legislation by courts 
about economics and about politics, just like a tariff law. I 
think the only difference is that' many commentators claim that 
one is the actual intention of the Sherman Act and the courts are 
bound to carry it out. If courts reject one. 1 think they are 
bound to reject the other. And that leaves us, 1 think, for 
constitutional reasons as well as for all others, with an 
exclusive goal of consumer welfare in the antitrust laws. 

Thank you. (Applause.) 



3491 


STATEMENT OF BERMAN SCHWARTZ 
BEFORE THE SENATE JUDICIARY COMMITTEE 
ON THE NOMINATION OF JUDGE ROBERT H. BORK 
TO BE 

ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT 
September 29, 1987. 


My name is Herman Schwartz and I am a professor of law at 
the American University in Washington, D.C... I teach 
Constitutional Law and have taught antitrust law; I am a former 
Chief Counsel and Staff Director of the Subcommittee on Antitrust 
and Monopoly of this Committee. 

Dean Pitofsky and Professor Sullivan have laid out the scope 
and consequences of Judge Robert Bork's substantive views on 
antitrust within the individual context. You have also heard 
about what can only be described as Judge Bork's minimal high 
regard for congressional abilities and activities in economic 
matters. As an aside, one cannot help wondering about Judge 
Bork's judgment in these matters since this is also the body that 
put through a most complicated and elaborate tax reform bill as 
well as other complex and successful legislation such as the 
Securities Acts and many other economic enactments which have met 
with a great deal of approval and success. 

Judge Bork is a very imaginative lawyer though. He puts 
down legal theorists but he is no mean theorist himself. Because 
he has also worked in constitutional law, he has gone beyond 
antitrust to incorporate his antitrust views in constitutional 
doctrine. As a result, even if Congress explicitly wanted to do 
the things he says it shouldn't, according to Judge Bork, the 
Constitution forbids it. Thus, Judge Bork, here as in other 
contexts to which I will advert below, uses constitutional 
doctrines—in contravention of the normal maxim of judicial 
restraint that constitutional arguments should be rarely 
invoked—to disenable Congress from trying to achieve what it has 
r-~ncededly and explicitly has been trying to do. 

This was, of course, most graphically demonstrated in the 
November 1986 speech which he made less than a year ago at a 
Symposium in New York on the coming centennial of the antitrust 
laws. As Dean Pitofsky has pointed out. Judge Bork went beyond 
his normal criticism on economic and historical grounds of 
Congressional efforts to import what he calls 'political values'* 
into the antitrust laws, and argued that even if Congress had 
made these choices explicit "it would not matter." Dean Pitofsky 
has quoted the relevant passage but it may be worth quoting 
somewhajj more of it to indicate the breadth of the constitutional 
claims. 


- 1 - 



3492 


Judge Bork said: 

But I want to go further, and urge that if all of these 
arguments that I have made in the past and which I skim over 
here did not exist and if everything said by the proponents 
of multiple goals of political goals of the antitrust laws, 
if all of that were true, it would not matter, once it is 
admitted that is, if Congressmen explicitly they said they 
wanted courts to weigh political values against the economic 
welfare of consumers, it would not matter. Once it is 
admitted that a major component of antitrust policy is the 
welfare of consumers, and 1 think almost every one admits 
that, it follows, 1 think, that consumer welfare must be the 
exclusive goal of the law. 

And the argument here, of course, is constitutional and 
I am 6peaking about separation of powers. He all know that 
the separation of powers often requires courts to refuse to 
do things that Congress explicitly directs then to do. 
Separation of powers underlies the Article HI standing 
concept, the political question doctrine, and so on. It also 
underlies the current debate about how judges should approach 
the Constitution, the current debate about original 
intention, the current debate about whether judges may create 
new rights not to be found in the textual or historical 
Constitution. 


This 1986 position represents a hardening of Judge Bork‘a views 
since in 1978 he wrote only that his approach was the only one 
which "permits courts to behave responsibly and to achieve the 
virtues appropriate to law." The Antitrust Paradox 89 Now he 
apparently argues that his approach is the only one which 
"permits courts to behave constitutionally." The impacts of the 
two approaches are of course, very different indeed, with respect 
to what Congress is permitted to try to do. 

There is no precedent, no logic, and no sense to Judge 
Bork's position. There are almost no cases that 1 have been able 
to find, in which the federal courts have refused to apply a 
federal statute empowering the courts to do certain things, but 
the courts refused for the reasons given by Judge Bork. Whether 
it be standing, political questions, or in any way related to the 
"current debate about original intention, the current debate 
about whether judges may create new rights not to be found in the 
textual or historical Constitution,” I know of no case where the 


My version of his talk is based on a copy of a tape that 
the Nation Institute obtained from the office of Milton Handler, 
in whose name the lecture at which Judge Bork spoke was given, I 
then had the tape transcribed by my secretary. Consequently my 
transcription is a virtually verbatim transcript of what Judge 
Bork said, and 1 have attached a copy of that to my testimony. 


- 2 - 



3493 


courts have refused because the subject of the assignment somehow 
involved "nonjudicial* Issues or goals. 

First, let us set forth exactly what these "political 
goals", "political values* that the courts may not enforce. 

First Judge Bork draws on Dean Pitofsky's important article in 
the University of Pennsylvania Law Review a few yearB ago in 
which the Dean sets out as goals. Congress' concern about 
"excessive concentration," and its desire to increase economic 
and individual freedom by avoiding concentration of economic 
power. Judge Bork elaborates on these goals in The Antitrust 
Paradox , where he also challenges such "political and social" 
goals as avoiding dealer "bondage," and "business 
egalitarianism," though he admits they have been very prominent 
in antitrust decisions. In that book he also challenges concern 
by Justice Peckham (whom he otherwise quotes approvingly) for 
"small dealers and worthy men." Be aims special fire at Judge 
Learned Hand's reading of the legislative history in the Alcoa 
case United States v. Aluminum Co. of America , 148 f.2d 416 (2d 
Cir. 1945) (a reading shared in by all but a few scholars), that 
"among the purposes of Congress in 1890 was a desire to put an 
end to great aggregations of capital because of the helplessness 
of the individual before them," as well as Judge Hand's belief 
that "Congress wanted to perpetuate and preserve, for its own 
sake and in spite of possible cost, an organization of Industry 
into small units which can effectively compete with each 
other." ( Paradox 52) (This is probably the first time that 
anyone has ever called Judge Hand, one of the leading proponents 
of judicial restraint, a judicial activist who "created an 
inexhaustible reservoir who created ... a warrant to do good as 
the judge sees the good, with no more guidance than that public 
injury is to be weighed against private benefit on scales that 
are not described, or rather fre described as the judge's 
'preference.'" (Paradox 53)) 

Judge Bork also challenges the "inclpiency" doctrine, which 
grew out of Congress' effort to nip anticompetitive trends before 
they got out of hand, particularly with respect to those 
practices subject to the 1914 and 1950 provisions Clayton Act, 
such as mergers, tie-ins, exclusive dealing, etc., all of which, 
of course, are considered almost per se legal by Judge Bork. 

These then are the social and political goals which he 
considers illicit, and which in his latest nonjudicial statement 
on antitrust, he rendered irrelevant by making an effort to 
achieve them unconstitutional. 


Incidentally, economists are now agreed that Judge Hand's 
Alcoa decision "increased the rate of invention" in the aluminum 
industry. Peck, Competitiveness in the Aluminum Industry 210 
(1961), and expanded production. S. Whitney, 2 Antitrust Policies 
118 (1958). 


- 3 - 



3494 


Judge Bork’s view has no basis in precedent, history, logic, 
or current practice. It represents judicial activism in the 
extreme and Is a constitutional version of the same kind of 
activism that Judge Bork shows in his substantive antitrust 
analysis, which Dean Pitofsky has demonstrated. It is Indeed 
ironic that in the name of separation of powers and judicial 
restraint, which for Judge Bork and others usually Implies that 
the courts are to adhere to majoritarian views. Judge Bork 
strikes at majoritarianism, a majoritarianism reflected in an 
almost uniform hundred-year history of numerous precedents and 
past and congressional enactments. 

What then of the constitutional theory? In a version of the 
paper that I did not have, I understand that Judge Bork cites 
Hayburn's Case , as support. 2 U.S.(2 Dali.) 400 (1792) But 
Hayburn's Case has nothing to do with this matter. In Hayburn’s 
Case , Congress assigned to the courts the role of approving 
veterans pensions subject to approval by the Secretary of War . 

The Court never dealt with this as a full court but various 
justices, sitting on circuit, all agreed that one could not 
assign to the courts duties of this kind "Inasmuch as it subjects 
the decisions of these courts, made pursuant to those duties, 
first to the consideration and suspension of the Secretary at 
(sic] War, and then to the revision of the legislature; whereas 
by the Constitution, neither the Secretary at War, nor any other 
executive officer nor'even the legislature, are authorized to sit 
as a court of errors on the judicial acts or opinions of this 
court ." 

In other words, as the editors of the leading casebook on 
federal courts classified Hayburn’s Case , this is a case dealing 
with "the requirement of finality," not an assertion that the 
particular task itself was unjudicial. See also Cordon v. United 
State , 117 O.S. 697 (1664) Indeed in 1926, in Tutun v. United 
States , 270 U.S. 566, Mr. Justice Brandeis held - that — tKe"federal 
court could be given "jurisdiction to naturalise aliens as 
citizens of the United States," pointing out that "the function 
of admitting to citizenship has been conferred exclusively upon 
courts continuously since the foundation of our government,” 
citing a 1790 Act. Be distinguished Hayburn's Case from this 
matter and obviously it was because there was no finality in that 
case, whereas here there was. 

The federal court has also been given other functions which 
have been sustained against challenges of non-judlciability such 
as the power to make civil and criminal rules for the federal 
courts, which rules often reach some very substantive issues such 
as the Rule 23, class action rules, the conflict of interest 
rules for criminal cases, and Borne of the discovery rules 
affecting personal liberty, such as Rule 35. 

The point in citing these cases is not to argue that these 
are all like the task assigned the courts in enforcing the 
antitrust laws and enforcing the goals that Judge Bork calls 


4 - 








3495 


political, for the latter natter is such eaBier to justify, it 
is simply to point out that the lines between what J:dge Band 
called the "departments of government" are not sharp and hermetic 
and do not act as Chinese walls preventing one branch from 
performing functions which usually are formed by others. 

Also, I have found only one case in which a court has 
refused to accept Congress' grant of standing, and that was when 
Congress granted Senator McClure standing to challenge Judge 
Hikva's appointment to the Court of Appeals for the District of 
Columbia Circuit. McClure v. Carter , 513 F.Supp. 265 (D.Idaho 
1981) (three-judge)” In that case,'however, it was clear from 
long-established precedent that Senator McClure had absolutely no 
right to such standing, for it has long been a rule that one 
cannot challenge a judicial appointment. The doctrine of 
congressional standing, which Senator McClure tried to use, could 
not be invoked here because he could not plausibly claim that his 
functioning as a Senator had been impaired by the confirmation of 
Judge Mikva—as the Court of Appeals said. Senator McClure was 
simply trying to change a result Congress had already settled 
on. This does not qualify for Congressional standing. 

Nor have 1 found any case where the Supreme Court or other 
federal courts have refused to entertain an issue that Congress 
had delegated to it on the ground that raised a non-justifiable 
political question. This would be very strange indeed, since the 
essence of a political question is that it raises matters that 
are either not manageable by the judiciary or would entail a 
certain disrespect for other branches. If Congress passes a law 
which the executive signs, it is difficult to see why it would be 
disrespectful to Congress or the executive. And as to manage¬ 
ability, I know of no case where a court has said an issue 
assigned to it by Congress was not judicially manageable, 
especially an issue raised in many statutes and one with which 
courts have been dealing for almost 100 years. Indeed, even 
where, as with extinguishing Indian titles, the Court had 
considered a matter a "political question [which] presents a non- 
justiciable issue" because it involved twc- sovereigns, it became 
■iusticiable when Congress "directed otherwise" in 1935 by 
seeking . . . judicial disposition." United States v. Alcea Band 
of Tillamooks , 329 U.S. 40, 46 (1946); cf White v. Mechanics 1 ' 
Securities Cotp. , 269 tJ.S. 283, 286, 301 (1925). 

Finally, to stretch the current arguments about new rights 
and original intent to this issue strikes me as far-fetched. The 
issue as to new rights has to do primarily with what can be drawn 
from the Constitution, apart from its text. The issue that Judge 
Bork is raising in the antitrust context involves, by Judge 
Bork's hypothesis, a very clear and deliberately chosen text. 

The sole similarity is giving the court responsibilities it 
should not have, but there is obviously a vast difference between 
the courts being given such responsibility by Congress, and the 
courts taking it on their own. The controversy over "new rights" 
involves only the latter and not the former. And as to original 


- 5 - 



3496 


intent* again under Judge Bork'a hypothesis* there is no question 
about Congressional intent. 

For all of these reasons it is difficult to see how any 
plausible constitutional argument can be made that Congress can 
not assign to the courts the role of taking these goals and 
values into account. 

Moreover* Congress has opted for such goals in many other 
statutes in the economic sphere. For example] 

The Staggers Act of I960, 49 U.S.C. ' 10101A, in setting out 
rail transportation policy includes as item 13 

"to prohibit predatory pricing and practices* to avoid undue 
concentrations of market power and to prohibit unlawful 
discrimination." 

Section 10 of the Public Utility Holding Co. Act of 1935, IS 
U.S.C.A. ' 791 J(b), provides that the commission shall approve 
acquisitions unless the commission finds that the 

1. "acquisition will tend towards . . . the concentration 
or control of public utilities companies of a kind or to 
an extent detrimental to the public interest or interest 
of investors or consumers." 


Section 11 of the Act allows a registered holding company to 
continue to control integrated public utility system if 

"the continued combination of such systems under the 
control of such holding company is not so large 
(considering the state of the art and the area or region 
affected) as to impair the advantages of localized 
management * efficient operation , or the effectiveness of 
regulation ." (emphasis added) .~ ' 


The Patent Laws also provide for such values. For example, 
35 U.S.C.A. 309(c)(2) says that a federal agency may not grant an 
exclusive or partially exclusive license under certain 
circumstances "if it determines that the grant of such license 
will tend substantially to lessen competition or result in undue 
concentration in any section of the country," and then goes on to 
say that u first preference in the exclusive or partially 
exclusive licensing of federally owned inventions shall go to 
small business firms ..." (emphasis added) 


- 6 - 


3497 


Finally, the Small Business Economic Policy Act of 1960 sets 
forth these purposes: 

For the purpose of preserving and promoting a 
competitive free enterprise economic system. Congress 
hereby declares that it is the continuing policy and 
responsibility of the Federal Government to use all 
practice means and to take such actions as are 
necessary, consistent with its need and obligations and 
other essential considerations of national policy, to 
implement and coordinate all Pederal department, agency, 
and instrumentality policies, programs, and activities 
in order to: foster the economic interests of small 
businesses; insure a competitive economic climate 
conducive to the development, growth and expansion of 
small businesses; . . . reduce the concentration of 
economic resources and expand competition; and provide 
an opportunity for entreprenuership, inventiveness, and 
the creation and growth of small businesses. 


Further research, I am sure could produce many more instances.* 

The consequences of Judge Bork's view, therefore, are that 
many statutes seeking to direct the economic life of the country 
and to fulfill certain political and social goals are 
unconstitutional and outside of Congressional power. No matter 
how much Congress wants to avoid small business “bondage", for 
example, it may not do so if it wants the courts to administer 
it. This, of course, would seem also to affect such statutes as 
the Automobile Dealers Franchise Act, 15 O.S.C. 1221, and the 
Petroleum Marketing Practices Act of 1978, 15 O.S.C.A 2801, both 
of which are explicitly designed "to balance the power now 
heavily weighted in favor of the automobile manufacturers" and 
oil companies, in order to Remedy "the disparity of bargaining 
power between franchisor and franchisee," one of the major 
problems arising out of the "bondage” that Judge Bork considers 
an inappropriate "social value." 


These, of course, are almost all in the regulatory 
context, but in all these cases it is well established that the 
courts are given the task of reviewing the agencies' judgment to 
determine whether the values and purposes that Congress put into 
the statutes and which, by hypothesis Judge Bork has acknowledged 
to be in the antitrust statute for purposes of his constitutional 
argument, are adequately considered and given due weight. NLRB 
v. Bearst Publications, Inc., 322 U.S. Ill (1944); Packard Motor 
Co. V. NLRB, 330 U.S. 485 (1947) These are ultimately judicial 
questions and all, of course, come up in the adjudicatory 
context, subject to extensive judicial review by the courts. 


- 7 - 



3498 


Judge Bork seeks to assimilate this kind of judicial 
responsibility to setting tariffs. If tariff-setting were 
assigned to the courts, it would probably be dismissed as a 
"political question", since it involves many complicated 
considerations not appropriate for judicial management—which, of 
course, is why it would never be assigned in the first place. 
This, of course, is quite different from antitrust law tasks 
where considerations like concentration, market power, and 
concern for small business have long been the business of the 
courts. 

It is especially startling that Judge Bork should suddenly 
find unconstitutional a practice which he concedes the courts 
have been performing—inappropriately in his view, but 
nevertheless consistently—for some seventy-five years, at least 
since the case, Dr. Miles Medical Co, v. John D. Park and Sons, 
Inc. , 220 U.S. 373 (1911). Even in Judge - BoTk's own statement of 
his constitutional cosmology, one should not lightly overturn 
long-standing doctrines around which a great many institutions 
and practices have developed. And this is certainly true where 
what is involved is not just one statute but many others. 

Judge Bork's resort to the Constitution is not unusual. 
Despite his claims of being hostile to judicial activism, he has 
no hesitation in constitutionalizing his restrictive standing 
notions, arguing, for example, in a dissent that the Constitution 
prohibits granting standing to Congressmen (or any other 
government officers) if they want to challenge a direct 
interference with their prerogatives as Congressmen. Barnes v. 

K1 ine , 759 F.2d 21 (D.C.. Cir. 1985), dismissed as mootTTo? 

S.Ct, 734 (1987). Be has also tried to create new doctrine 
restricting associational standing, leading his sympathetic 
colleague, Judge James Buckley, to protest that this was based on 
nothing but inferences from Supreme Court decisions, had no 
precedential support, and was unnecessary to the decision of the 
case. Haitian Refugee Center v. Gtacey , 809 F.2d 794 (D.C... 

Cir. 1987) This activism is also reflected in his view that the 
campaign contributions law or indeed any law seeking to control 
campaign contributions is not just bad policy but 
unconstitutional, and thus. Congress is constitutionally 
disempowered to deal with what every one agrees to be serious 
problem. I have dealt with this in an article in The Nation , 
which I also append. 


Perhaps I have misunderstood Judge Bork's views. I hope 
not, because I would not like to do him any injustice. The 
Committee has both the tape and the transcript with which to 
compare my assessment of his views with hie own. Unfortunately, 
he ha9 done very little systematic elaboration of his thoughts on 
these matters—indeed his last systematic analysis of 
constitutional problems was In his 1979 Michigan speech and 
before then in his 1971 Indiana article. Consequently it is hard 
to respond to the specifics of his position, because he offers so 


- 8 - 



3499 


very few. But If I have characterized Judge Bork “ a views 
correctly, then as I said earlier, they are without any 
constitutional, historical, or precedential support and are 
simply another expression of his attempt to enforce his views— 
which he concedes to be those of a mere handful of economists and 
academic lawyers ( Paradox 425)—in direct contravention of 
congressional will. 



3500 


THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 
Saturday, November 15, 1986 
ANTICIPATING ANTITRUST'S CENTENNIAL 


Comments by The Honorable Robert H. Bork 


Hilton Handler has asked that I focus on the subject of the 
goals of antitrust and since I am in substantial agreement with 
Don Turner about that I could save us all a lot of time by just 
agreeing and sitting down. However, on the platform with us, 
fortunately for purposes of dramatic affect, we have one of the 
foremost exponents of the view that judges may consider non¬ 
economic goals in deciding antitrust cases. 1 refer to Dean 
Pitofsky. Now it is kind of unfair of me to pick on him, it's 
kind of unfair of me even to identify him, in this respect. 
(Laughter) But he is here and I will use him as a proxy for the 
people I really want to argue with. 

Antitrust thinking has changed a great deal in the past few 
years and undoubtably will change again. There is not only the 
possibility of new legislation but there is the certainty that 
economic analysis will continue to evolve and as it does the 
rules of antitrust will follow. But the present shift in 
antitrust enforcement is due at least in part to a dramatic shift 
in judicial perceptions of the goals of antitrust policy. It was 
routinely said not long ago that the goals of antitrust were not 
exclusively economic, that judges should bear political and 
social values in mind in reaching decisions. Today it is 
commonly said that they are, that the goals of antitrust are 
exclusively economic. In a sense that the only goal is the 
maximization of the welfare of the consumers. The question is 
whether this goal may properly evolve or change as economic 
analysis wil do in framing rules. I think not. Here I wish to 
make a decidedly perverse suggestion, one that will be regarded 
by economists and their fellow travellers as heretical. It is 
this. On these subjects in antitrust, law is a more rigorous and 
unchanging discipline than is economics. Bence it is proper that 
the substantive rules of the law evolve as economic understanding 
progresses. But it is not proper that the goal of antitrust 
change because under our form of government the considerations of 
law that determine that goal are permanent. 

Now as I said, I will use Dean Pitofsky as an 
illustration. He begins his provocative article. The Political 
Content of Antitrust , by asserting {that] the issue among serious 
people has never~Eeen whether non-economlc considerations should 
outweigh significant long term economies of scale but rather 
whether they had any role to play at all, and if so, how they— 
that is the political goals—should be defined and measured. I 
relieved to hear that that was not an issue among serious people. 


- 1 - 



3501 


but that does drop Learned Hand, Earl Warren and William 
O'Douglas Into an unfortunate category. (Laughter) 

Now Dean Pitofsky specifies the political values he wants 
applied. First, a fear that excessive concentration of economic 
power will breed anti democratic political pressures. Second, a 
desire to enhance individual and business freedom by reducing the 
the range within which private discretion by a few in the 
economic sphere controls the welfare of all. (I am still quoting 
from the Dean.) Third, an overriding political concern is that 
if the free market sector of the economy is allowed to develop 
under antitrust rules that are blind to all but economic 
concerns, the likely result will be an economy so dominated by a 
few corporate giants that it will be impossible for the state not 
to play a more intrusive role in economic affairs. My objection 
to all of this is not primarily that the political values listed 
are extremely amorphous or even if they are wrong as a matter of 
fact, as is certainly true of the prediction that the likely 
result of efficiency in an economy is an economy dominated by a 
few corporate giants. 

The Dean rests his argument essentially upon legislative 
intent. He says an antitrust policy that fails to take political 
concerns into account would be unresponsive to the will of 
Congress and out of touch with the rough political consensus that 
has supported antitrust enforcement for almost a century. Now I 
have time constraints, and I wont pause to argue as I have 
elsewhere, that the legislative history of the various antitrust 
statutes contains little or nothing that suggests that judges 
should use political considerations to make decisions. Nor will 
I repeat the other arguments about the text of the statutes and 
the structure of the law and the distinctions it makes. It seems 
to me that when one looks at the academic literature which 
purports to find the direction the courts to take the political 
values into account, it really ignores the arguments from text, 
structure, and so forth, in favor of extracting snippets of 
rhetoric about grand values from the legislative history. And 
there certainly is rhetoric about very large values in the 
legislative history. 

But I want to go further, and urge that if all of these 
arguments that I have made in the past and which I skim over here 
did not exist and if everything said by the proponents of 
multiple goals of political goals of the antitrust laws, if all 
of that were true, it would not matter, once it is admitted that 
is, if Congressmen explicitly they said they wanted courts to 
weigh political values against the economic welfare of consumers, 
it would not matter. Once it is admitted that a major component 
of antitrust policy is the welfare of consumers, and I think 
almost every one admits that, it follows, I think, that consumer 
welfare must be the exclusive goal of the law. 

And the argument here, of course, is constitutional and 1 am 
speaking about separation of powers. We all know that the 


-2 



3502 


separation of powers often requires courts to refuse to do things 
that Congress explicitly directs them to do. Separation of 
powers underlies the Article III standing concept, the political 
question doctrine, and so on. It also underlies the current 
debate about how judges should approach the Constitution, the 
current debate about original intention, the current debate about 
whether judges may create new rights not to be found in the 
textual or historical Constitution. 

And Indeed, 1 think that the common view of courts at work 
here. I think the view that judges should take rhetoric 
discussion of political consequences out of the legislative 
history, and proceed to weigh political concerns as they define 
them against economic welfare, it is really the same kind of 
function that is advocated when judges are urged to make up new 
constitutional rights out of moral philosophy or some other 
source. I think it is, in both cases, a function that is 
forbidden by the concept of separation of powers which involves 
what Warth against Seldin said concern about the proper and 
properly limited role of courts in a democratic society. Now 
antitrust once had a theory of this sort, but I skip over those 
cases because of time and we are running late, but to illustrate 
what I mean by the separation of powers concerns which prevent 
courts from taking any political or social values into account in 
applying the antitrust laws, let me hypothesize two very 
different states of legislative intent. 

In the first hypothetical state of intent. Congress clearly 
indicates in the debates that the courts are to protect 
consumers, they are also to protect small business and they are 
also to protect political democracy. In cases of conflicts 
between those values the courts are to assess the relative 
importance of the values and to arrive at decisions that achieve 
the best balance. You will recognize that as what is the "in 
effect" direction that many commentators think that Congress gave 
the courts. 

In my second hypothetical state of intention. Congress 
clearly indicates that imports are hurting American business, 
they're restraining trade, damaging small business, and that 
courts are to entertain suits by American firms against 
importers, to decide which American industries require 
protection, and impose tariffs that balance the conflicting 
Interest Involved including the Interests of consumers. 

I think there is no doubt that no court would accept that 
second delegation to think about, to balance consumer welfare, 
industry welfare and so forth and write tariffs. That would 
impose a non-judicial task forbidden by the separation of powers, 
the very kind of delegation courts have refused many times in the 
past. 


But returning to the first hypothetical in which the court 
had to balance political values against economic values, is there 


- 3 - 



3503 


really any doubt that that imposes precisely the same kind of 
non-judicial duty? 1 think the only difference is it is 
legislation. What it imposes is wide open legislation by courts 
about economics and about politics, just like a tariff law. I 
think the only difference is that many commentators claim that 
one is the actual intention of the Sherman Act and the courts are 
bound to carry it out. If courts reject one, 1 think they are 
bound to reject the other. And that leaves us, I think, for 
constitutional reasons as well as for all others, with an 
exclusive goal of consumer welfare in the antitrust laws. 

Thank you. (Applause.) 



3504 


September/J./Rff Till* .Vnfiitts. 



VOILAf THE CENTRIST 

THE FRANTIC 
REFLAGGING 
OF BORK 

HERMAN SCHWARTZ 

TV campaign lo pul Judge Robert Bosk on IV 
Supreme Court la built on a Big Lk: that Bork k 
a moderate, flexible cent rial like retired Junta 
Lewii PoweB Jr., whom he was nominated to 
replace. The While House, Washington cor¬ 
porate lawyer Lloyd Cutler and Bork himself 
have all worked industriously to cover up what 
Bork really is—a rigid far-right activist who is 
not at all hesitant about using whatever power be 
has to funher his ideology. 

A few weeks after President Reagan nomi¬ 
nated Bork, Cutlet rushed lo print with a piece 
on the New York Times Op-Ed page. Writing as 
“a liberal Democrat and as an advocate of civO 
rights before the Supreme Court,” Cutler placed 
Bork in the tradition of Justices Oliver Wen¬ 
dell Holmes, Louis Brandeis, Fclis Frankfurter, 
Potter Stewart and Powell, aliening he would 
be “closer to the middle then lo the right” of 
the Supreme Court spectrum. No matter that 
Botk disagrees with ad those Justices on the cen¬ 
tral issues before the Court, that Bork has 
scathingly criticized Holmes and Brandeis for 
granting too much latitude lo free expression, has 
ridiculed Brandeis’s antitrust theories, deplored 
Powell's affirmative-action ruling In the Regents 
o/ (he Vnh/tnlty of California v. Bckkt case 
(and, by Implication, his other decisions in diet 
area), disagrees with Frankfurter’s church-and- 
statc views and has branded as illegitimate the 
rulings upholding abortion laws that Stewart and 
Powell have several times reaffirmed. For Cutler, 
Bork is "not far from the Justice whose diair be 
has been nominated to flD." 

Eleven days later, the White House issued a 
(Continued on Page Jd7) 





Seftcmbt- to. I9t? 


TlioXnUtni. 


267 


the academy. This subterranean discontent mi|Wi surface, 
reconnecting with public life. Conservatives, suspecting and 
fearing this, continually rail against what they Imagine b the 
threat from the universities. Even if they are wrong, perhaps 
they arc right. □ 


Bork 

(Confirmed From Front Cover) 

thick briefing book that painted Bark as ■ "powerful ally of 
First Amendment values" and other civil Ebert let and 
Tights, whose views were in the “mainstream.*’ Statistics 
were compiled to show that he had dissented in only 6 per* 
cent of the cases that came before him. Ho mention am* 
made of the fact that there is dissent in the Courts of Ap¬ 
peals decisions less than 4 percent of the time. 

Bork himself has given interviews to ■ jerks of news¬ 
papers in which, while disctaiming any intentioo to discuss 
"issues," he made sure to gel across the point that be was « 
"moderate centrist." His state menu bi an interview with 
USA Today were typical: 

USA TODAY: Haven't you said you dent dunk of yourself 
at a conservatfveT 

BORK: Not u a matter of legal point of view. The position I 
have taken In public—that you can find in my writing—U 
that the judge's last b to take the intentions of the hgb- 
bturct and apply to the circumstances, hi a view that haa 
been taken by liberals and a view that's been taken by ce ns er * 
natives—and it's a view that’s been denied by both. 

USA TODAY: Some people say that yum tub* an the 
Supreme Court could flip a lot of precedents. And you'd my, 
don't necessarily bet on k. 

BORK: Right. 

Bork's writings have revealed t rigid reactionary, and 
part of the strategy to make him look Eke a moderate enufls 
distinguishing between what he has said as a law professor 
and what ne would do as a Justice. Thus, he utld USA To¬ 
day, "t think it's possible at an academic to lots cell ideas 
with some freedom. But when you're a Judge, what you're 
doing is important to people. You don't fed the same kind 
of intellectual freedom that you Bright as an academic." 

Bruce Fein of the Heritage Foundation, a former 
usociate deputy U.S. Attorney in the Reagan Adrauustm- 
lion and a spokesman for the right, was more c«»dM la 
in interview broadcast by the Voice of America, Fda 
lisagreed sharply with Culler: 

The Bork nomination wcn6d man, by and large, the ueki 
docket of the Coon would tuns a co n ser vative hec, lather 
than just half, ash’s been over the Iasi decade. By and Urge, 
Presidents get what they smut. 1 Drink Judge Bork wuuki 
vole the way President Reagan wodd wwu Ifv 


Herman Sch warn, a con tribn tint editor of The Nation, g a 
>rofeaor of law at American University and editor qf The 
turger Years: Rights and Wrongs in the Supreme Court 
96946 (Elisabeth Stfion Books/ViklnfJ. 


And Cutler's own credibility In this matter b somewhat 
suspect. As evidence of Bork’s liberalism, he cited and 
quoted from Bork’s opinion in Oilman v. Evans and Novak, 
in which Bork came out for expanding pirn freedom from 
Kbd suits when criticising political figures. Last yeas, 
however. Cutler also testified that Antonin Scalia was a 
centrist. As evidence of Scalia's liberalism, he cited the same 
Oilman decision. TV catch b that Scalia and Bork were on 
opposite sides in the Oilman case and had sharply disagreed. 

Presidents have often tried to shape the Court in their im¬ 
age and, as Fein says, "usually successfully." Franklin D. 
Roosevelt transfo rm ed the Court with his appointments and 
Richard Nixon achieved what he Intended. But both those 
Presidents’ goab were tuniicd. Roosevelt only wanted to 
hah the Court's interference with governmental efforts to 
direct the economy. Nixon's main goal was to overturn the 
Warren Court's criminal Justice rulings. 

Reagan’s agenda b much broader than either Roosevelt's 
ot Nixon’s. He b trying virtually to end the Supreme 
Court's role in advancing individual rights. The Administra¬ 
tion has not only attacked the Court's rulings on affirmative 
action, separation of church and state, abortion, equal pro¬ 
tection and criminal Justice; it has also challenged the 
legitimacy of the Court’s entering these areas at all. At¬ 
torney General Edwin Mecsc Id's verbal assaults on the in¬ 
corporation doctrine (which requites state and local officials 
to adhere to the BiU of Rights); hb rejection of thr Supreme 
Court’s traditional role at the ultimate expositor of the Con¬ 
stitution; and hb criticism of decisions that depart from 
what he coosidcn to be the “original intent" of the Con¬ 
stitution's banters are expressions of that attitude. 

Berk's record, oo and off the bench, b tailot-made for 
the Reagan Administration's agenda. Like Mccse, he has 



3506 


i6*_ Tl><‘ Xnfitm. _ Stptembtr 19, m:- 


assailed not only the specific ruling! but their legitim*( 7 . 
And his record on the bench shows that despite constant 
reiteration of his fidelity to "judicial restraint," he Is ag- 
creatively activist in furthering his views, regardless of 
jur.Viil precedent and even the clear will of Congress. 

Rort't hostility to the Court's decisions on abortion, affirm¬ 
ative action and school prayer b well known, and on page 269 
Jamie Kalven considers Bork's views on free speech. Less 
know n arc Bork '$ views on access to the courts, antitrust and 
discrimination; the White House and Cutler did not mention 
the first two and omitted much about the third, 

A legacy of the Warren Court is the availability of 1 
Federal forum for people injured by government or private 
misconduct. Since his first days on the bench, Bork has gone 
out of his way to undo that legacy. A study released by the 
A.F.L.-C.I.O. found that in seventeen out of seventeen 
nonunanimous cases raising access issues he used a variety 
of procedural techniques to deny a litigant his day in court. 
Lack of standing to sue and governmental immunity have 
been his favorite grounds. Even when a majority of judges 
have voted to throw out 1 case on the substance of the 
claim, Bork has written a separate opinion challenging the 
court's authority to hear the case. 


JUSTICE BORK? 



Abortion, free speech, civil 
rights, race relations... 


In October 1983, and June 1984, Jamie Kal¬ 
ven provided Nation readers with a grounding 
in the reactionary constitutional philosophy ot 
Judge Robert Bork. Copies ol this timely set ot 
articles are now available for 82 each; $1.30 
each for orders of 10 or more. 

Send check or money ortet. payable to The Nation, to 
Bor 0. The Nation. 72 Fifth Avenue. New Vortt. NY 
10011. (New York residents add appropriate sales tax.) 


Thus, Bork has held that the homeless have no right i. 
challenge a decision by the Administration not to establish t 
"model shelter" as promised; that Medicare patients ma. 
not challenge an effort of the Department of Health am 
Human Services to prevent the courts from revirwir. 
denials of claims; that Haitian refugees may not challenge 
government policy of slopping refugees on the high seat 
and that Congressmen may not challenge the President's us 
of the pocket veto. 

Bork's pocket-veto opinion—a dissent—reflects his ji 
diciat, activism and his deference to presidential power, th 
most publicized example of which was his firing of Arch 
bald Cox as Watergate special prosecutor. Congressmt 
have been Tiling challenges to the pocket veto in the Distri. 
of Columbia for more than ten years, and in an unbroke 
tine of decisions Ihe courts have agreed to hear them. Bo; 
concedes this but, together with Scatia, has made it cla 
that he is quite ready to overturn those precedents (an a 
titude Scalia displayed in his first year on the Court, votir 
to overturn or "re-examine” no fewer than four Icadir 
cases, one thirty-seven yean old). 

Bork’s activism on this issue Is reflected as much in h 
method as in his results. One of the cardinal principles t 
judicial restraint is that, whenever possible, the case thou 
be decided on nonconstitutional grounds. Bork has non 
thelcss relied on the Constitution in almost all his sundin 
to-sue decisions, despite the availability of noncoratiunion 
alternatives, to that if his views prevail, even if Cong re 
wanted to grant some people the right to sue, it could nc 

Bork’s antitrust jurisprudence, both on and off t 
bench, is also a good indicator of his Ideology and the ze 
with which he pursues it. Bork is particularly noted for 
article attacking a sevtnty-tix-ytar-old Supreme Court dc 
sion that the Sherman Antitrust Act prohibits a mac 
faciurer or wholesaler from telling a customer what 
charge the next buyer. This practice, which Congress h 
allowed the states to exempt from the antitrust law if th 
chose, added millions to retail prices until Congress repeat 
the exemption in 1975. Bork has not changed his mind 
this issue, and once on ihe Supreme Court, he would alnv 
certainly seek to overturn the 1911 decision. 

Bork would also eliminate most restrictions on “hr 
zontal" mergers between competitors and all limitations 
“vertical” mergers, those between a firm that supptie 
commodity and one that uses it. In 1950, in the wake o 
huge acquisition by U.S. Sled, Congress passed the Cell 
Kefauver Act, which imposed tight controls on such cc 
binaiions. Fears of economic concentration and harm 
small businesses were widely recognized as Congress’ d 
concerns, as they have been since the Sherman act ' 
pasted in 1190. 

But what Congress wants means little to Bork. In a t 
lured reading of the legislative history of antitrust la 
Bork concluded that the evidence showing what Congt 
wanted to accomplish was “inconclusive," But, he said i 
speech in November 1986, even if It were deal that Congt 
indeed had been motivated primarily by the fear of econt 
ic concentration and concern fot small business, t 



3507 


September If, 1987 


“would not matter,” because the Constitution docs not 
allow Congress to tell the courts to enforce such values. No 
precedents or authorities are given for this novel view, which 
flies In the face of a series of decisions stretching back to 
when the Sherman act was adopted. Once again. Both, the 
advocate of judicial restraint, has created a constitutional 
argument, so that even if Congress explicitly told the courts 
to be concerned about economic concentration, they and 
Judge Boric could ignore iL 

The District of Columbia circuit gets few significant 
antitrust cases, but in the one that Bork got his hands on, 
Rothery Storage and Van Company v. Altai Van Lints. 
Inc, he went far beyond what was requited in the case, 
writing his own views into the law. On the Supreme Court, 
Bork's impact on antitrust matters could be immense. Few 
other Justices seem veryr interested in the field, and he would 
have little trouble finding allies among his fellow conser¬ 
vative Justices for his anti-antitrust crusade. 

Bork's views in this area are pan of a generally pro¬ 
business ideology. A study by Columbia Law School stu¬ 
dents of rulings by Reagan appoinlees to the Courts of Ap¬ 
peals In nonunanimous cases found that in eight cases where 
business and industry groups sued Federal agencies, Bork 
voted for the business groups seven times, whereas public 
Interest groups that sued the agencies won In only one out of 
eighteen on which he sat. In one notorious case, Bork stood 
a forty-year-old utility law doctrine on its head in order to 
help a power company compel its customers to pay for a 
canceled MOO million (with interest) nuclear plant. He has 
upheld a Food and Drug Administration rule extending the 
time color additives of questionable tafety could stay on the 
market pending tests, and in cases involving air pollution, 
worker safety and labor-management relations he has Ig¬ 
nored his usual deference to administrative agencies to over¬ 
turn rulings (hat went against business. 

Bork's views on laws barring racial and sexual discrimina¬ 
tor also show his authoritarian side. In a 1971 Uw journal, 
ne wrote that "most of substantive ft.e., non procedural) 
equal projection is ... improper.... The Supreme Court 
has no principled way of saying which non-racial inequali¬ 
ties are impermissible.” Precedents, some set forty years 
ago, were challenged as "improper,” including decisions 
protecting illegitimate children and welfare recipients; rul¬ 
ings prohibiting judicial enforcement of racially restrictive 
housing covenants, stcriliiation or selected groups of felons, 
and poll taxes, as well as the case mandating the one person, 
one vote principle. Although he has since tried to back away 
from those views by calling them "academic,” he has also 
said that they represented the culmination of seven years’ 
hard thinking and debate with his mentor, the late Yale Law 
School Professor Alexander Bickd. And this year he reiter¬ 
ated that *'I do think the equal protection clause probably 
should be kept to things like race and ethnicity.” 

Bork might not uy to pul those precise views Into effect, 
but they are bated on a profound predisposition toward 
Judicial immobility where the protection of individual rights 
is concerned, and ■ methodology he has never repudiated— 
that the only valid sources of constitutional Uw are the text. 


269 

history and structure of the Constitution. Those predisposi¬ 
tions will inevitably emerge in his decision-making on new 
issues that come before him. 

Moral Majority leader Jerry Falwell has declared that 
"We are standing at the edge of history. Our efforts have 
always stalled at the door of the U.S. Supreme Court and 
[the Bork nomination) may be our Ust chance to influence 
this most Important body." He's right, and not because 
Bork is a centrist. □ 


Bork v. The First 

JAMIE KALVEN 

upporters of Supreme Court nominee Robert Bork 
arc making a concerted effort to portray him as an 
open-minded moderate. Toward that end, they 
make much of his views on the First Amendment. 
His work in this area, they say, shows that he is more sensi¬ 
tive to civil liberties and less ideologically rigid than his 
critics suggest. They acknowledge that he advanced an ex¬ 
tremely narrow interpretation of the First Amendment in a 
1971 arikte in the Indiana Law Journal but argue that his 
more recent pronouncements, seen against that background, 
testify to his capacity for intellectual growth. The press has, 
for the most pari, accepted those cUims uncritically. The 
Senate Judiciary Committee should not, for this portrait of 
Bork as a champion of First Amendment values has virtually 
no basis in fact. On examination It proves to be based on 
nothing more than a single concurring opinion and an ambig¬ 
uous, self-serving reply to criticisms published in these pages. 

In the October 1, 1983, issue of The Nation, I analyzed 
Bork’s 1971 article to show what his general approach to the 
Constitution would mean for one highly valued tradition. 
When the American Bor Association Journal ran an item 
about my ankle under the memorable title "Here Conies At- 
tila the Hun of the Constitution,” Bork responded angrily. 
His reply, published in the A.B.A. Journal, was at once 
healed and carefully crafted. In tone it teemed to disavow the 
1971 article, implying that I had been somehow unfair to 
take seriously what he had written thirteen years earlier; in 
faci it conceded very little. On June 16,1984, in a second at- 
tide in The Nation, t posed the questions that his reply had 
left unanswered. Bork did not respond directly. He did, how¬ 
ever, address First Amendment themes in another forum. 

While the Nalion/A.B.A, Journal exchange was in prog¬ 
ress, the United States Court of Appeals for the District of 
Columbia Circuit, on whkh Bork sits, hrard arguments in 
oilman v. Evans and Novak, a libel case. Some months later 
it ruled that the statements at issue were protected under the 
First Amendment. Bork look the occasion to file a concur¬ 
ring opinion, in which he expressed concern about the rising 
incidence of libel suits against the press. He wrote eloquently 


Jamie Katvtn Is the editor of A Worthy Tradition: Freedom 
of Speech in America, by Harry Kaim Jr., to be published 
In January by Harper A Row. 


The Nntion. 



88-374 0 - 89-26 


3508 


Th<> Nation. 


rcceisarily rough-and-tumble character of potiii- 
w in > free society and offered tome thoughts on 
aw might bell be developed. The opinion it lucid 
jI. It is not. at tome of his supporter* would have 
, the Magna Cana. 

d be ungenerous lo dismiss the Oilman opinion as 
lattempt by Bork tocountcr the image of himself— 
4 to 140,000 lawyers by the official publication of 
nired bar—as a menace to the free speech tradition. 
- be equally inappropriate, however, lo disregard the 
rnd surrounding circumstances of the opinion. For 
tit one of many instances that have stirred suspicions 
hciher Bosk's actions are dictated by principle or by 
ic considerations arising from his campaign for a seat 
Supreme Court. As they review his career and writings, 
sators who will vote on Bork's nomination must take 
or to misread oppori unism as evidence of an open mind. 
t should they be deluded into thinking the Oflmon 
on a significant departure from Bork’s earlier pU- 
<hy. On the contrary, it is wholly consistent with the 
Amendment theory he advanced in 1971. At the heart 
rat theory is the idea, associated with the landmark libel 
lion in Ntw York Tlmtt v, Sullivan, that the central 
ining of the First Amendment resides in the protection of 
public debate essential to democracy. So far so good, 
t he proceeds hem that premise ro the harshly narrow 
acluriont that near Amendment protection should be 
tilted to “political speech” and that there should be no 
mstiiuf ional impediment to the suppression of speech that 
advocates forcible overthrow of the government or the 
tolaiion of any law.” 

Neither Bork's A. B.A. Journal reply lo my artide nor his 
apinion in Oilman discloses to whet extent and in what 
res peers he continues to subscribe to that theory. The Senate 
Judiciary Commiliee should question him dosriy about 
this. There arc several lines of inquiry: 

( In the A.B.A. Journal. Bork stated that he no longer 
lakes i... that First Amendment protection it Umiled to 
political speech: ”1 have long since cone hided that many 
other forms of discourse, such ns moral and scientific 
debate, arc central to democratic government usd deserve 
protection.'* The phrasing of this apparent recantation is 
unnerving. What about literature and aitf Do they fall 


SUPREME COURT WATCH 
REPORT ON JUDGE BORK 

Tha Supreme Court Wolch project of The 
Nation Inttitule has produced an exhaus¬ 
tive analysis of Robert Bork's positions on 
several civil rights and civil liberties issues. 
To order a copy, write Emily Sock, director. 
The Notion Institute, 72 Fifth Avenue, New 
York, NY 10011. Please include $4 for 
shipping. 


Stpttmbar IP. 19BT 


within those "Other forms of discourse"! On what basis 
would he distinguish the nonpolitical speech he would pro- 
teo from that which he would not? 

f Bork would deny constitutional protection to sp e ech 
that advocates the violation of any law. Does that include 
advocacy of civil disobedience! Under his theory would h 
have been constitutional for Alabama to jail the Rev. Mar¬ 
lin Luther King Jf. for giving a speech urging tit-ms at segre¬ 
gated facilities! 

| Bork’s A.B.A. Journal reply was silent on the Issue 
posed by (he advocacy of forcible overthrow of the govern¬ 
ment, although my article had sharply challenged hb wewt 
on this question. The issue is ccntnl to political freedom. 
Such advocacy is typically part of a larger political critique. 
Hence lo draw the boundaries of permissible advocacy is 
alto to determine the limits of permissible criticism. Starting 
with the elaboration of the "clear and present danger” tent 
by Justices Oliver Weadell Holmes and Louis Brandeis In 
the yean following World War I, the Supreme Court baa 
strived to fashion constitutional standards that allow for iha 
fullest possible protection of political criticism while curbing 
advocacy as it approaches the threshold of criminal action 
In 197) Bork cunly dismissed that km of doctrinal develop¬ 
ment. Docs he st iti regard the dear and present danger test 
as an unwarranted judicial invasion of the legislative do 
mam? Does he ttik believe that the dewle pmen i of Fine 
Amendment doctrine should have stopped with CiOom it 
Ntw Ford, a case decided In 192J and long since repudiated, 
in which the Court held (hat legislatures should be feet to 
suppress any advocacy of force or The vfariartoa of kw, no 
mailer how deeply e ni b ed d e d In political criticism, no mus¬ 
ter how general and remote from art ion? (The a aaa iom 
might present Bork with da sp ee c h at kmc in G ktow 1 
pamphlet about which Justice Notaries, dissenting, tartly 
observed. “Whatever may be thought of the r e d u n dan t die- 
course before us. it had no chance of starting a present com 
Bagration”—and atk him if he would allow k to be tup- 
pressed today.) Does be remain pr e p ared ro argue that da 
purpose he discerns in the First Amendment—protection of 
the political criticism essential to democracy—is best served 
when the tack of determining the outer limits of acceptable 
criticism is kfl to the majority and to the government of- 
ficiah criticued? 

Inquiry into Bork's First Amendment views has signifi¬ 
cance beyond the obvious importance of the freedoms at 
stake. This is the ground his supporters have chosen in their 
efforts lo soften bit image. Once the mirage of Bork as an 
ardent guardian of the First Amendment is dispelled, the 
pattern underlying hia position on various constitu¬ 
tional issues emerges with harsh clarity. It h a pattern of 
unrelenting hostility lo the entire enterprise of judicial review 
for the purpose of protecting individual and minority rights. 
When Bork nnd his supporters use the words "judicial re- 
strsint" to describe this orientation, they defame an honor¬ 
able tradition. To reject the Bork nomination is not to reject 
that tradition. It Is to reject a radical program fundamentally 
at odds with the wny most Americans, conservatives as well 
asliberals, think about law, jutticeandtheConstiiution □ 




3509 


The Chairman. Gentlemen, thank you not only for your state¬ 
ments but for staying within the time. I appreciate it. 

I have a number of questions, but I am going to try to reduce 
them to just a couple. 

It seems to me the two things that are the paradox of Judge 
Bork in these hearings relate to this area, not “The Antitrust Para¬ 
dox,” but the Bork paradox. 

The Bork paradox seems to be that he spends a great deal of 
time and effort in his writings and in his speeches and before this 
committee saying that he has a majoritarian view; he is the ulti¬ 
mate Madisonian, as he defines Madison’s view; and that judges 
should not make laws, that should be left to us. And he appealed, I 
think somewhat persuasively to all of us, that he did not want to 
do our job; he wanted us to do our job; and judges should judge and 
not make laws. 

Yet in this area, the paradox seems to be in the area of antitrust 
that he seems ready to completely discard what the will of the Con¬ 
gress is. And let me start with you. Dean, and I might add I did not 
read your whole resume here, but you have written in this area. 
Antitrust is your field; is that not correct? 

Mr. Pitofsky. Yes, that is right. 

The Chairman. You are dean at Georgetown Law School. 

Mr. Pitofsky. Right. 

The Chairman. He says in his book “The Antitrust Paradox” 
and apparently has repeated it in various forums a number of 
times that antitrust law is analogous to constitutional because the 
central institutions in developing these laws have been the Su¬ 
preme Court. That is, the Supreme Court has developed constitu¬ 
tional law, and he argues the Supreme Court has developed anti¬ 
trust law. 

Now, let me quote directly. He said, “Because the antitrust laws 
are so open-textured, leave so much to be filled in by the judiciary, 
the Court plays in antitrust almost as unconstrained a role as it 
does in constitutional law.” 

Dean, what does he mean by that comparison? 

Mr. Pitofsky. Well, I think those two points are fair. It is true 
that Congress legislated in the antitrust field in very broad terms, 
and most antitrust over the years has been judge-made law and not 
specific congressional directives. 

The question, however, is whether judges are free to completely 
ignore the will of Congress, even accepting that Congress gave 
them a rather broad mandate. I think many people feel that Con¬ 
gress gave judges a rather broad mandate. 

But Judge Bork goes further than most of those people. Many 
judges would say the antitrust laws are vague and, therefore, we 
have the right to do the best we can. Judge Bork, in the excerpt 
that I quoted, says, “Even if I agreed that Congress meant what 
you said, I do not have to follow it.” 

The Chairman. What do you have to support that beyond that 
quote? That seems a startling comment. I have heard that repeated 
not only by you but others. 

Is that just his engaging in his—I forget how it was phrased by 
others, but just excessive rhetoric? Is there any evidence that he 



3510 


means that, that ranging shots? Is there any evidence that Judge 
Bork really believes that he does not have to pay attention? 

For example, if Congress comes up with a law that is clearly, 
from Judge Bork's perspective, anti-competitive, maybe even 
stupid, let us say we say we want to protect every business that has 
fewer than 50 employees and we are going to protect it in a way 
that is different than we have ever done it before and, in fact, 
makes commerce more difficult rather than easier. 

Based on his writings and his statements, what would Judge 
Bork’s view of that be in terms of whether he had to follow it? 

Mr. Pitofsky. I perhaps am not the best person to interpret his 
work, but I would think it is something like this: 

If Congress said to judges strike down all mergers between com¬ 
panies with combined market shares of 20 percent, we would agree 
that he would have to do it. On the other hand, if Congress said 
strike down all mergers that lessen competition and they also said 
take into account when you are interpreting the phrase “lessening 
of competition” something more than efficiency—for example, the 
freedom of people to enter and exit markets, the question of wheth¬ 
er or not you will have political instability because companies grow 
too large—he would say that is a directive that is unenforceable, 
unprincipled, vague, and therefore judges do not have to follow it. 

The thing that is striking about all this is that it assumes that 
economics is precise and that the political dimension is vague. 
There are many people who would not agree with him on that. 

The Chairman. Last point, and it is a yes or no question. Is he, 
on this issue, part of the law and economics school of the law? 

Mr. Pitofsky. He is. He is one of the most eminent and effective 
spokesmen for that group. 

The Chairman. Thank you. My time is up. 

I yield to my colleague from South Carolina, Senator Thurmond. 

Senator Thurmond. Thank you, Mr. Chairman. 

Thank you, gentlemen, for your appearance. Dean Pitofsky, 
Judge Bork wrote the book “The Antitrust Paradox,” which you 
held up a few minutes ago, I believe in 1978. Or was that Mr. 
Brown? Which one of you help up that book? 

Mr. Brown. I did, Senator Thurmond. 

Senator Thurmond. Now, he testified to this committee about 
that book that at that time, 9 years ago, he considered himself an 
amateur economist. The book was premised on the question of 
what best serves the consumer. He is interested in what best serves 
the consumer. 

Judge Bork testified some of the arguments put forth at that 
time would appear wrong today, and he admitted that in testimony 
before this committee. He did not think so at that time, but as eco¬ 
nomics advance, the ideas change. I imagine your ideas have 
changed from years gone by on some things, have they? 

Mr. Brown. Yes, they have. Senator. 

Senator Thurmond. Well, that is what Judge Bork said about 
this book. And so that would appear sufficient of what he wrote in 
1978. 

I want to say this. It is a little puzzling to me- 

Mr. Brown. Senator, do you want me to respond to that? 

Senator Thurmond. If you care to and do not take too long. 



3511 


Mr. Brown. I will respond very briefly. 

The ideas that he put forward in “The Antitrust Paradox,” Sena¬ 
tor Thurmond, he put right into his opinions. He has had two 
major antitrust opinions; Rothery and Neumann are two of his 
major ones—the most major is Rothery. 

In Rothery, he brought “The Antitrust Paradox” ideas right into 
the Rothery opinion on horizontal restraints of trade, put it right in 
there. The same theories there became the law or at least the law 
for the D.C. circuit in that opinion. 

In Neumann, he brought his ideas from monopolization right into 
there. So he only allows for three areas of antitrust to be enforced: 
horizontal restraint sometimes, mergers and monopolization. And 
two of those, monopolization and horizontal restraints, he brought 
those theories in from the book. 

So my feeling is that I am sure that my ideas have changed a lot 
in 10 years and everybody’s have and his have, but his core area of 
belief seemed to be brought right into his judicial record in the last 
3 years. 

Senator Thurmond. That is your opinion. 

Mr. Brown. Yes, it is. 

Senator Thurmond. Well, he said that some of his ideas now 
have changed since then. He admitted that. Do you not admire a 
man who can change his mind on things and can advance with the 
times? 

Mr. Brown. I admire that. I am just saying between 1978 and 
1985 his ideas did not change. 

Senator Thurmond. Now, yesterday, we had a panel of law 
school deans here. Did you hear them testify? 

Mr. Brown. Yes. 

Senator Thurmond. You were here yesterday? 

Mr. Brown. I heard part of the law school deans. 

Senator Thurmond. Any of you here yesterday? 

Mr. Abrams. Yes. 

Senator Thurmond. All of you? 

Mr. Pitofsky. I was here for part of it, yes. 

Senator Thurmond. Mr. Terrance Sandalow, dean of the Univer¬ 
sity of Michigan Law School, he testified in favor of Judge Bork 
that he thought he was an able scholar and would make an excel¬ 
lent Supreme Court Justice. Mr. Steven Frankino, dean, Catholic 
University Law School, testified in favor of Judge Bork. He said 
the same thing. 

Mr. Maurice Holland, dean, University of Oregon School of Law, 
testified in favor of Judge Bork. Mr. Ronald Davenport, former 
dean, Duquesne Law School, testified in favor of Judge Bork. 

Mr. Eugene Rostow, professor emeritus, former dean, Yale Law 
School, testified in favor of Judge Bork. Mr. Thomas Morgan, dean, 
Emory University Law School, testified in favor of Judge Bork. Mr. 
Gerhard Casper, dean, University of Chicago, testified in favor of 
Judge Bork. 

And also yesterday, another panel who were specialists on anti¬ 
trust, the very thing you are talking about here now—and I do not 
know whether you consider them as well qualified as you are on it, 
but they are supposed to be experts on this subject. Mr. Thomas 
Kauper, professor, University of Michigan Law School and a 



3512 


former Assistant Attorney General in charge of the Antitrust Divi¬ 
sion, a man who was a former Assistant Attorney General and spe¬ 
cialized in antitrust. That was his business. He testified in favor of 
Judge Bork and said he thought he was sound on antitrust. 

Mr. Donald Baker, from Sutherland, Asbill & Brennan, Washing¬ 
ton, D.C., another former Assistant Attorney General in charge of 
the Antitrust Division, he thought he was sound on antitrust. Mr. 
James Halverson, a partner, Shearman & Sterling of New York, 
and former director of the Federal Trade Commission Bureau of 
Competition, he testified in favor of Judge Bork. He thought he 
was sound. Mr. Phillip Areeda, professor at Harvard Law School, 
testified in favor of Judge Bork. 

So what you are saying today is absolutely contrary to what 
those people said yesterday, and of course, you have a right to say 
it. There were seven law school deans who testified; there were 
four experts on antitrust who testified; and the testimony is just at 
odds. So that will just be up to the committee, of course, as to 
whose testimony they will accept. 

Mr. Abrams. Senator Thurmond, there are many who are deans 
of law schools—Senator Biden opened today’s hearing indicating 
letters that came from 40 percent of all the law professors in the 
accredited law schools in the country—who are opposed to Judge 
Bork’s nomination. 

I think what we are saying is that we think—and there is a 
strong body out there who believes this, who are experienced in 
antitrust enforcement—that Judge Bork is not in the mainstream 
of judicial- 

Senator Thurmond. I understand that these people said he was 
in the mainstream. That is why you differ. So I say the committee 
will just have to settle that. 

Mr. Abrams. And I think the reason why people say he is not in 
the mainstream, I think they give him credit, appropriate credit 
for raising the issue of efficiency as one of the considerations to 
take into account in analyzing antitrust cases, and appropriately 
so. But he makes the fundiamental mistake by saying that efficien¬ 
cy is the only basis. 

Senator Thurmond. That is your opinion. These other deans and 
experts on antitrust do not agree with you. So I say the committee 
will have to settle it. 

That is all 1 have got to say. 

Mr. Abrams. I think- 

Senator Thurmond. I am through, Mr. Chairman. 

Senator Kennedy. He is entitled to respond. The witness is enti¬ 
tled to be heard. General Abrams, if you want to make a comment, 
then we will go to the next question. 

Mr. Abrams. Yes. It is not my opinion that Judge Bork says that 
efficiency is the only basis upon which the antitrust laws are based 
and which should be considered in analyzing those issues. This is 
the very heart of Judge Bork’s analysis as he uses that term “con¬ 
sumer welfare,’’ which is not what normal people think because in¬ 
cluded as consumers are monopolists and cartels and price-fixers. 
And he does not take into account other economic issues such as 
the extortion of wealth from consumers to monopolists, the social 
and political dimensions that Senator Sherman had in mind and 



3513 


the others who since 1890 have enacted important antitrust legisla¬ 
tion. 

Then he takes the next improper step, which is to overrule Su¬ 
preme Court precedent and- 

Senator Thurmond. I say that is your opinion, and you have got 
a right to it. 

Mr. Abrams. And I think what I am saying is that that opinion 
is not just of the Attorney General of the State of New York, but a 
large number of distinguished people who served as chairs of the 
Antitrust Division in the Department of Justice, who are deans of 
law schools, professors of law schools, and individual practitioners. 

The Chairman. The Senator from Massachusetts. 

Senator Kennedy. Thank you, Mr. Chairman. 

I, too, want to join in welcoming the panel. It is a very distin¬ 
guished panel. General Abrams, is probably the dean of Attorneys 
General in the country and, as you pointed out earlier, has impor¬ 
tant responsibilities for Attorneys General across the country in 
the antitrust field. Now, General Brown is heading up that particu¬ 
lar organization of the Attorneys General, and it is a pleasure to 
have Professor Pitofsky back. He is not only a dean at Georgetown 
and a student and academician on antitrust, but he has also been 
willing to enter the public world as a member of the Federal Trade 
Commission where he used his intelligence and knowledge of anti¬ 
trust laws to serve the public interest of the people of this country. 

I welcome the panel, and I think there is important weight to 
their comments. 

We all know that there are limitations on time, and what I 
would like to have, first of all, from General Abrams and General 
Brown, is this. One of your prime responsibilities as attorney gen¬ 
erals is the protection of consumer interests. 

But how, if Judge Bork’s views were the law of the land, and 
given even his current statements, how would they affect your abil¬ 
ity to protect the consumers? In his case, in New York, and, in 
your case. General Brown, in West Virginia. 

Consider activities, for example, that you have been involved in 
as attorney general in the past months, and things that you might 
be interested in doing in the future. Then I would like to come 
back to Professor Pitofsky in another area in terms of judicial ac¬ 
tivism, whether your perception of Judge Bork in the antitrust 
area is really—I think you have made a comment “outside the 
mainstream.” Do you believe, based upon his decisions and recent 
statements, that he would be a judicial activist and how that may 
very well affect antitrust policy. 

I think the people in our country want to know how this nomi¬ 
nee is going to affect the quality of their lives, and from what I 
know in terms of his antitrust positions, they will have an impor¬ 
tant impact on the average citizen and their ability to purchase 
various goods, whether it is from discount houses, whether it is 
shoes for their children, clothes, the whole range of different appli¬ 
ances. Tell us about it. 

Why should the consumers in the States that you represent be 
concerned about this judge, should his view and position on anti¬ 
trust law become the law of the land? General? 



3514 


Mr. Abrams. If Judge Bork's views were to be adopted, that 
would virtually eliminate 90 to 95 percent of antitrust enforce¬ 
ment, and the kinds of protections that consumers have known for 
the better part of a century. 

Let me try to translate that into a very dramatic situation that 
occurred in New York and some other States, and how it impacted 
on our consumers. 

One of the things that is on the Bork agenda is to legitimize ver¬ 
tical price-fixing which is an illegal practice under present law. 

We recently brought a case against- 

Senator Kennedy. Just explain that, quickly, and then get on to 
the heart of it. 

Mr. Abrams. Okay. That means that under present law—enacted 
by the Congress, and reaffirmed by the Congress in the last 3 years 
under budget amendments that the Congress passed in 1985 and 
1986, and 1987, because the Justice Department was filing briefs 
that were in derogation of Congress’ will here. The Congress took 
action. 

Under that concept, a manufacturer could not impose upon a re¬ 
tailer the price that the retailer could charge. And that happened, 
recently. 

A complaint came to the New York office from a retailer saying 
that the Minolta Corporation was dictating a price below which no 
other retailer could sell; otherwise, they would be threatened with 
the cutoff of supply for a new camera, the Maxuum 7000. 

And we took that on as a case, settled it pretty quickly, got relief 
for 500,000 consumers involving millions of dollars, and in the end, 
37 different States opted into a settlement, whereby—all consumers 
had to do was send in the receipt, they got $15 back for any pur¬ 
chase of a Minolta camera during an 18-month period of time. 

So every day in the marketplace, there are situations where 
money is taken from the wallets of consumers because of predatory 
practices, anti-competitive practices, and if Judge Bork’s agenda, 
was ever implemented, these consumers would have no protection 
from either federal enforcers or State enforcers. 

Mr. Brown. It would be a disastrous impact, Senator Kennedy. I 
am glad you asked. The antitrust laws really benefit all of us. They 
benefit consumers in the way of lower prices. They benefit taxpay¬ 
ers because when we stop bid rigging on the State level we help 
our taxpayers. 

They benefit business, bold entrepreneurs, people that want to 
compete, take chances. Those are the businesses that really benefit 
when you enforce the antitrust laws. 

This non-enforcement would have a terrible effect. As General 
Abrams is pointing out, we have both vertical and horizontal re¬ 
straints. 

Restraints between competitors are horizontal. Restraints be¬ 
tween supplier and retailer are vertical. He wants to cut it off both 
ways. He says no enforcement vertically, meaning manufacturers 
can demand, and suppliers can demand that retailers charge at a 
certain price, but he also wants to reduce competition between 
competitors by allowing mergers down to only three companies. 

Well, the effect is when you cut off horizontal and vertical com¬ 
petition you have no intra-brand competition which we badly need 



3515 


when there are oligopolies, when there are only a few companies 
competing, and then you cut off any change—by having only a few 
companies, you then cut off any chance on intra-brand by having 
no price competition, and a total ability to have the restraint- 
trade— 

The Chairman. What do you mean by intra-brand? What do you 
mean by intra-brand. Would you define it. 

Mr. Brown. A good question. Intra-brand means the same people 
selling the same product but competing with each other on price. 
Different Chevrolet dealers in town competing with each other on 
price. 

We have got to have intra-brand competition, when there is only 
a few manufacturers in the market. Judge Bork would allow the 
few manufacturers to shrink to only about two or three per indus¬ 
try, and then he would say, also, we will have no intra-brand, no 
competition within that brand by different retailers. 

So all the two or three companies would have to do is say, well, 
what’s the advertised price of our competitors? Well, good, we’ll all 
keep the price that high. They will never have to worry about dis¬ 
count stores. They will never have to worry about transshipping, 
off-brand sales—all the things that are used to bring price competi¬ 
tion. 

And there will be terrible suffering by our consumers because 
they will have to pay a lot more money for goods and services. 

Mr. Abrams. Senator, you asked for a practical application. I 
thought of another one, because Americans are beer drinkers, and 
we have got a major beer case challenging vertical restraints in 
that industry. 

And under the Bork theory, we would never be able to bring this 
kind of a case against the major beer companies. We have seen con¬ 
centration— 

The Chairman. Tell us what you mean by that. 

Mr. Abrams. Okay. The major brewers say that we will only 
allow one official distributor in a big area—in New York City it is 
a county, in the city of New York, and some of those counties have 
2.5 million people. 

So only one distributor will be recognized by the manufacturer 
for official distribution. 

The Chairman. Budweiser says if anybody is going to drink Bud- 
weiser beer in Manhattan they have got to buy it from this one dis¬ 
tributor? 

Mr. Abrams. That is right. And in the past you had enormous 
transshipment, competition, a lot of different companies being able 
to sell within territories such as Brooklyn. 

Now you have got limitations mandated by the brewer, and what 
has happened since that has gone into effect several years ago in 
New York, the price of beer has gone up 40 percent, way in excess 
of anything that is comparable in the market basket, and we have 
brought a law suit challenging that, saying it is anti-competitive, it 
is in violation of the antitrust laws. 

So we are talking about pocketbook issues, real issues—cameras, 
beers, all kinds of clothing, things that people go and buy every 
day in department stores and supermarkets. 



3516 


And that is why our hands would be tied as State enforcers, and 
the federal government, if, indeed, this Bork agenda was ever en¬ 
acted. 

Mr. Pitofsky. I will be very brief. May I just add one word to 
this discussion of territorial allocation which Attorney General 
Abrams was talking about. 

Many people feel the law should be relaxed in that area. The dif¬ 
ference between Judge Bork and many conservative critics is he be¬ 
lieves such transactions should be absolutely legal, not even chal¬ 
lengeable, regardless of market share or business justification. 

Senator Kennedy, you asked the question is there any reason to 
think that the Judge Bork of 1987 is different than the person who 
wrote these articles. 

I think in this area there is no reason. I know that Judge Bork 
has modified his position in the constitutional law area and with 
respect to civil rights, but this is the work of a lifetime, and I see 
no reason to think that he has changed his views. 

He has only written a few antitrust opinions on the court. The 
one that was the most ambitious was Rothery. There was no quar¬ 
rel about who was going to win the case. Everyone that looked at 
the case agreed the defendant should win, and Judge Bork wrote 
that opinion. 

But it is striking that he did three things in that opinion. One, 
declared that only economics counts, which I think the Supreme 
Court has never said. 

Second, he declared, as he had written in ‘The Antitrust Para¬ 
dox,” that if a company has a small enough market share, nothing 
it does under any circumstances, for any reason, can be illegal. 

It is interesting that the Supreme Court, that very week, nine to 
nothing, adopted the opposite view. 

And then third, he said in that opinion that two Supreme Court 
cases he recognized were inconsistent with his theory had been “ef¬ 
fectively overruled,” although of course the Supreme Court never 
said anything of the kind. Maybe it will turn out they are “effec¬ 
tively overruled,” but the Rothery opinion reflects a very aggres¬ 
sive way of deciding cases, and of introducing special views into the 
law. 

The Chairman. Thank you. 

Senator Thurmond. Will you allow me to make one statement 
now? 

The Chairman. Sure I will. 

Senator Thurmond. Mr. Abrams, speaking about that beer bill, I 
agree with you thoroughly on that, and that is a bill that Senator 
Metzenbaum and I opposed. The committee reported it out. I think 
it is on the Senate calendar now. That bill should not be passed, is 
not in the best interests of consumers. 

Mr. Abrams. We welcome your support, Senator. You are a pow¬ 
erful voice on that issue for us. 

Senator Kennedy. I think there were three of us. 

Senator Thurmond. I just wanted you to know that so far as that 
is concerned, I am interested in the consumers, but I think Judge 
Bork is, too, and I think he would be fair to the consumers. 

The Chairman. Well, speaking of beer, let’s find out what has 
happened at the Three Ribbon Bar. 



3517 


Senator Simpson. The Blue Ribbon Bar. 

The Chairman. The Blue Ribbon Bar. I yield to my colleague 
from Wyoming. 

Senator Simpson. Mr. Chairman, I thank you, and this is a true 
story, that in my youth I weighed 260 pounds, had hair, and 
thought beer was food. I really mean that. I actually weighed that 
much. Well, back to beer. Now you see, Dennis DeConcini was un¬ 
decided. You lost him. You just lost him. [Laughter,] 

That is his bill. 

Senator Kennedy. I am glad he is not here. 

Mr. Abrams. I am glad he is not here this morning. 

Senator Kennedy. Do not tell him. 

Senator Simpson. I am going to bring it to his attention. 

Mr. Abrams. Senator, he knows my views on that. I testified 
before him on that. 

Senator Simpson. I think so. Well, I happen to be on Dennis’ side 
on that one, because the bill says that this will be done as long as 
it is not anti-competitive, and that the State antitrust laws will 
remain in force—well, just a second, I have only got 5 minutes, 
guys. We can argue that later. 

I would not be surprised, at all, at the number of law-school pro¬ 
fessors who have written on this issue and expressed their anti- 
Bork sentiments, because I really think they may have—and it is 
just my hunch—have reviewed the very studied distortion of his 
record which was sent out, and which changed the American Bar 
from an “exceptionally well qualified” just 5 years ago, to now, a 
split decision of 10-4-1 which is odd to me, and remains odd to me. 

Are any of you members of the American Bar? All of you? 

Mr. Pitofsky. I am. 

Senator Simpson. I was, too, in my practice. That has been a very 
curious thing. Judge Bork has written a book, and we find that it 
has been cited, approvingly, by the United States Supreme Court, 
the book, “The Antitrust Paradox,” in no fewer than six majority 
decisions of the United States Supreme Court, by such diverse Jus¬ 
tices as Bill Brennan, Lewis Powell, Stevens, Chief Justice Burger, 
and Justice O’Connor in a recent case of Jefferson Parish. Justice 
Blackmun. And I do not believe that anyone would say that those 
decisions are outside the mainstream. 

But what is really curious and fascinating to me is that we have 
an endorsement here which is worth all the rest of them combined, 
and that is the endorsement of 15 past chairmen of the Antitrust 
Law Section of the American Bar Association. 

That letter is dated August 7th. This is from the immediate past 
chairman, and every single chairman back through 1968, that final 
one being Miles Kirkpatrick—it is a “Who’s Who of Antitrust” in 
the United States. And they said that, indeed, they had a strong 
endorsement of Judge Bork, and that is each and every one of 
them, and they said, “Judge Bork’s writings in this area have been 
among the most influential scholarship ever produced.” 

They go on to say that his book has been referred to and cited by 
the U.S. Court of Appeals in 75 decisions since its publication. It 
goes on with some statistics, and then, of course, it challenges 
Colman McCarthy’s article which was quite harsh. 



3518 


But here it is. And here is the final sentence. It says: “Fortunate¬ 
ly”—and this is signed by all of those gentlemen, fifteen of them, 
gentlemen and ladies. “Fortunately, the mainstream view—this is 
a quote—which no one has helped to promote more than Judge 
Bork, is that the proper antitrust policy is one which encourages 
strong private and government action to promote consumer wel¬ 
fare, rather than unnecessary government intervention to protect 
politically favored competitors.” 

Now that is a quote from that. Judge Bork testified right here on 
September 17th regarding his alleged advocacy of court-made law 
and antitrust matters. He replied to Senator Metzenbaum that 
Senator Sherman himself, the author of the original legislation, 
said that the courts will have to evolve the rules of antitrust, and I 
assume that he later related it was because the statutes were so 
vague in that area. 

And so this is the situation on antitrust, and it seems very puz¬ 
zling to me that in the most recent fascinating case, a very lucid 
opinion—and he has written four opinions involving antitrust mat¬ 
ters. 

The one, Rothery Storage and Van Company v. Atlas Van Lines, 
he applied principles of economics in his conclusion, and ruled that 
the policies adopted by Atlas Van Lines served the efficiency pro¬ 
ducing purpose of preventing local carriers from obtaining a 
hidden subsidy by using the Atlas national reputation and re¬ 
sources when hauling goods. 

He was joined in that opinion by Judge Ruth Bader Ginsburg. 
Judge Pat Wald filed an opinion concurring in the judgment. Those 
are the things that we have to grapple with as we listen to the pros 
and the cons of Judge Bork, and not one single person—I take it 
back, we had one who has come in here—and challenged the reali¬ 
ty that this is a remarkable man, a remarkable intellect, a sweep¬ 
ing, almost extraordinary intelligence, whose honesty is beyond 
question, his integrity is above reproach, his decisions are firm and 
readable. But. 

And then the “but” part is not like the usual “but” part when 
people say that in normal social exchange or intercourse. The 
“but” part is that he is anti-Semitic, anti-black, anti-woman, would 
sterilize his fellow human beings, and that is the troublesome part 
about this entire thing for me. 

If the “but” part were just that, you know, his stuff is off the 
wall, and this and that, but to go and dredge deep, deep down, and 
pull this stuff up, and then ship it out around America—and let me 
tell you, the opponents know how to ship the stuff. I can tell you 
that. They were ready for this guy. 

When Scalia got the nod, Bork was next in the tank, and they 
went to work right then, and it is awesome to watch, and it is 
rather disturbing to me because is it not just, you know, light stuff 
when the challenges are made. It is heavy stuff. You know, that we 
are taking the toys away from the kiddies, and, you know, the 
price of beer is going to go out of sight, and Christmas will be more 
expensive, and Robert Heron Bork did this. I mean, really, it is 
beyond this Member’s comprehension. 

I have never seen anything like it in 9 years, but we will see it 
again, I can tell you that. Thank you. 



3519 


Mr. Pitofsky. I have heard often the claim that Judge Bork’s 
guiding star is consumer welfare in the antitrust field. I just want 
the committee to understand, that that is a technical economic 
term that has a special meaning to people in the antitrust field. 

If there were a practice that was efficient, and enriched manu¬ 
facturers, and did not help consumers at all, that would be regard¬ 
ed by Judge Bork as “consumer welfare.” I just hope that people 
understand that “consumer welfare” does not directly relate to the 
welfare of consumers. 

Senator Simpson. Well, I do understand it. I just wonder if the 
other 15 members of the Antitrust Section of the American Bar As¬ 
sociation understand it, or they would not have said what they did. 

Mr. Pitofsky. Senator, it is a very distinguished group and I 
think the members are entitled to respect. 

On the other hand, had you had a panel of academics in anti¬ 
trust, or private trial lawyers in antitrust, or government trial law¬ 
yers in antitrust, and you brought up 15 presidents of those organi¬ 
zations, you might have had a different, less unanimous result. 

Senator Simpson. We only have one expert on antitrust on this 
panel and he is next, and we- 

Mr. Abrams. Senator, may I offer a comment, too, just in re¬ 
sponse to some of the things, because it has come up over the last 
couple of days. 

Senator Simpson made reference to the fact that some Supreme 
Court and circuit court decisions make reference to Judge Bork, 
and that is true, and Judge Bork does deserve credit for raising ef¬ 
ficiency as an issue that must be taken into account when analyz¬ 
ing antitrust cases. 

And that is where that reference is made. It is not made in terms 
of approval of the Bork agenda, of completely eliminating the law 
on vertical restraints, both of a pricing nature and a non-pricing 
nature, and his rule with respect to mergers. 

On those substantive issues, the Supreme Court has held firm 
and has not adopted the Bork position. They refer to his writings 
as it relates to his analysis of efficiency and some of the economic 
considerations that are taken into account. 

And when one looks at the decision in GTE Sylvania, the refer¬ 
ence is made to Bork, but in the end, it is a decision that is in oppo¬ 
sition to the Bork view, in terms of the rule of reason analysis that 
the Supreme Court continues to hold to. 

Senator Simpson. I thank you very much, it is a very complex 
area, and I would just ask to put in the record, Mr. Chairman, the 
summation of Robert Bork in his book at page 407, the book, “The 
Antitrust Paradox,” where he speaks of his philosophy of free 
entry and open markets, and vigorous competition, and I thank you 
very much. 

[The information follows:] 



3520 


Recommendations 





quasi-governmental groups like organized exchanges. Predation through 
such institutions appears to be more frequent than has been supposed. 

Finally, there is the rTtntrw|y impnrfjnr Met- of bringing the original 
and still valid antitr ust philosophy o f free entry, o pen mark ets, and 
,r ' those areas where an^rom petihve behavior now 
occur s with governmental bless ing. This can be done in two ways. The 
firscismtervention in federal, state, and local regulatory processes to 
extend the competitive ethic as broadly as possible. There are many reg¬ 
ulatory schemes that leave room for antitrust in their interstices. Much 
regulation does not, for example, assume the suppression of all com¬ 
petition in the industry; but through inattention or worse, regulated in¬ 
dustries have been permitted to cartelize in ways not necessary to the 
success of the regulation. Antitrust enforcement can challenge such 
developments and make clear the limits of regulation as well as the 
claims of competition. 

More than this may be done, however. The Antitrust Division is 
not merely a litigating agency; it has important responsibilities in the 
formulation of new legislation. It should expand its portfolio to encom¬ 
pass testimony on the merits of new legislation that has implications for 
competition. The Division may often be unable to litigate once regula¬ 
tion is in place, but it is able to testify and to publicize its opposition 
to anticompetitive measures and to seek the repeal of legislation that has 
needlessly suppressed free market forces. 

Positive programs such as these would be enormously beneficial to the 
wealth of our nation and to the competitive ideal. Such programs would, 
moreover, elicit enough opposition from affected industries to dispel any 
notion that a policy of free markets is in any sense narrowly pro-business. 




3521 


The Chairman. Thank you. Before I move to Senator Metz- 
enbaum, I would like to state two things. One, the fact of the 
matter is each of the witnesses that have come before us on all sub¬ 
jects come with—as has been pointed out by my colleague from 
Wyoming—some understandable, and not even detectable, in many 
cases, bias. As attorneys general, your job is to protect the consum¬ 
ers of your State as you see it, and quite frankly, I imagine not 
many of the American Bar Association panel, on the Antitrust Di¬ 
vision, represent other than the major corporations in America. 

There is nothing wrong with that. There is nothing wrong with 
the fact that Mr. Cutler and Griffin Bell represent the major corpo¬ 
rations in America, because they also can speak to it, both sides of 
this issue, with alacrity. 

I just want everybody to understand, that we all come from a 
certain spot in this, and as someone quoted yesterday, one of the 
professors who was here on the pro Bork panel said that he had 
someone once, that he worked with—oh, I guess it was Elliot Rich¬ 
ardson—and I am paraphrasing. 

I think he said where you stand depends upon where you sit, 
and, obviously, there is some truth to that. And so the American 
Bar Association Antitrust Panel is not likely to be made up of 
people who are bringing suits that are designed to protect, you 
know, wholesale/retail price maintenance. 

You know, it just depends on where you are. So I think we 
should take each of you for what you say, and we make a judgment 
on whether or not the job you have to do impacts upon that or not. 

The Senator from Ohio. 

Senator Metzenbaum. Mr. Chairman, I want to just take one 
second to correct the impression that these 15 former antitrust 
committee chairmen endorse Judge Bork. 

All they have done in their letter is to take issue with an article 
written by Colman McCarthy, and to indicate that “The Antitrust 
Paradox” written by Judge Bork is among the most important 
works written in the field in the past 25 years. 

But these 15, or 18 men and women did not endorse Judge Bork. 

And secondly, I should point out, that the fact that they were 
chairmen of the Antitrust Committee of the American Bar Associa¬ 
tion does not prove a whole lot either, because along the lines of 
what the Chairman just said, it depends upon where you sit and 
what your perspective is. 

Almost without exception, every one of the chairmen of the Anti¬ 
trust Section of the American Bar have been those who represent 
defendants in antitrust cases. They are the corporate lawyers, and 
they are not those who have been on the side of the consumers of 
this country. 

And so I do not think that that is particularly significant. I think 
what is significant is what the chairman did, I think yesterday, 
when he put in the record the statement of 1925 professors and 
law-school deans representing 40 percent of the total number of 
professors in the country, who have indicated they are not support¬ 
ing Judge Bork’s candidacy. 

Coming back to you, Mr. Abrams, let me get into an issue that I 
am not sure everybody understands. It has to do with the subject of 
retail-price maintenance, and you know what it is, and I know 



3522 


what it is, but I am not sure that everybody else understand what 
it is. 

We both know that the Supreme Court has time and time again 
said that you may not maintain prices, you may not have resale 
price maintenance, and we know that Judge Bork has seriously 
criticized the Supreme Court in that respect. 

In simple layman's terms, what is resale-price maintenance all 
about? 

Mr. Abrams. It is price-fixing where the manufacturer of a prod¬ 
uct dictates and controls with a retailer what that price should be 
at the retail level, what price the consumer will pay. 

So it really prevents competition. These days we have got a lot of 
discounters, we have got a lot of operations in the country that 
want to compete and operate on a very low profit margin on all 
kinds of electronics, appliances, or clothing. 

And when you have got a manufacturer who says you must 
charge $100 and nothing less—so if a storekeeper wants to cut 
down on the profit margin and charge $95, he will not be able to do 
that. 

Senator Metzenbaum. And Judge Bork says the manufacturers 
should be permitted to maintain prices to say you must charge 
$100 and not charge $95, is that correct? 

Mr. Abrams. That is what Judge Bork thinks, but that is not 
what the Supreme Court says is the law, that is not what the U.S. 
Congress says is the law. 

The Supreme Court has said it, since 1911, in the Dr. Miles case. 
The U.S. Congress has time and time again reaffirmed this, when 
they repealed the fair-trade laws in 1975. They reaffirmed that 
view and attitude. 

They did it in the last 3 years when— 

Senator Metzenbaum. More recently, we actually, at the in¬ 
stance of a prominent Republican Member of the Senate, put on an 
appropriations bill a bar to the administration filing an amicus 
brief in a case in which they wanted to argue that resale-price 
maintenance was legal, and the Congress said you may not even 
file a brief. 

Mr. Abrams. That is absolutely right, Senator, and it was a bi¬ 
partisan approach. Congressman Hamilton Fish, a Republican from 
my State led that fight. Congressman Hyde, a Republican from Illi¬ 
nois was very supportive. President Reagan signed the legislation. 

Senator Metzenbaum. Senator Rudman, I think, led it, and Sen¬ 
ator Gorton, here, in the Senate. 

Mr. Abrams. And so here we have an example of what troubles 
many of us—the will of the Supreme Court, the will of the Con¬ 
gress, and yet Judge Bork saying it is right for a judge to just over¬ 
rule Supreme Court precedent, and to refuse to enforce laws that 
have been passed by Congress. 

Senator Metzenbaum. Dean Pitofsky, you mentioned something 
to the effect that Judge Bork would permit mergers down to maybe 
as few as five companies. General Brown mentioned two. 

My recollection is that is what Judge Bork said, that he would 
not be opposed to eliminating all the competition in a particular 
field, even if there are only two companies left, and then at one 
other point he said, well, maybe as many as three. 



3523 


What impact would it have upon the American people if his view 
were to prevail, in your opinion? 

Professor Pitofsky. As to his position he has said two different 
things. 

He has written that he would be comfortable with mergers up to 
60 or 70 percent of a market, but as a tactical concession, knowing 
what the realities are, he would settle for a line at about 40 per¬ 
cent. 

I think it would change the nature of the country. We are al¬ 
ready witnessing the most massive wave of mergers that we have 
seen, certainly since the late 1960’s. 

The Reagan administration has been rather lenient about 
merger enforcement. The striking thing about Judge Bork’s posi¬ 
tion is that many, perhaps most of the mergers that this lenient 
administration has challenged, would sail through under his views. 

Senator Metzenbaum. Thank you. 

Mr. Pitofsky. Because mergers down to two or three firms—well, 
those are rarely attempted. 

Senator Metzenbaum. Thank you, Dean Pitofsky. 

I had a question for General Brown, but I note my time has ex¬ 
pired. I did want to say, Mr. Chairman, that I was not here yester¬ 
day when those in the antitrust field who support Judge Bork were 
testifying. 

That was not a deliberate slight on my part. I was on the floor, 
and I am just sorry that I did not have an opportunity to inquire of 
them, but I just want to say that I did not stay away for any spe¬ 
cial purpose other them to be on the floor of the Senate. 

The Chairman. Thank you. The Senator from Iowa. Senator 
Grassley. 

Senator Grassley. If I could, as long as Senator Metzenbaum 
brought up some points about antitrust law—and I know that, 
based on Senator Metzenbaum’s questioning of Judge Bork himself, 
that there is great disagreement here—I would like to do this for 
Senator Metzenbaum’s benefit as well as anybody else. In 1982, 
shortly before he voted to put Judge Bork on our second highest 
court, he said. “The subject of these hearings is not whether we 
agree or disagree with Judge Bork’s economic views or antitrust 
philosophy.’’ That is what Senator Metzenbaum said. 

He also said that he disagreed, across the board, with Judge 
Bork’s views in 1982, and yet he joined the rest of us in the Senate 
in unanimously approving Judge Bork, so- 

Senator Metzenbaum. If I could just point out to my colleague, 
briefly- 

Senator Grassley. You can. 

Senator Metzenbaum (continuing]. That the difference is, that as 
a member of the circuit court of appeals, he is duty-bound and has 
no choice but to follow the Supreme Court decisions that have been 
made previously. 

As a member of the Supreme Court, he is in a position to change 
those previous decisions, and that is what makes the situation so 
frightening. 

Senator Grassley. Well, we are going to have plenty of opportu¬ 
nity to debate this on the floor of the Senate, but I think it does get 
back to the issue that most of us on this side have been trying to 



3524 


emphasize about Judge Bork. That you are going to find, whether 
it is antitrust law or a lot of other interpretations of the Constitu¬ 
tion, you are going to find him much more in the mainstream than 
what the propaganda put out has led the public to believe. 

And I personally look forward, very much, to the opportunity to 
get this out before 100 Senators, and people who are going to have 
a fresh view of it. 

So we are going to have an opportunity to show this, and I re¬ 
spect Senator Metzenbaum’s statement about the importance of the 
Supreme Court over the court of appeals. 

But, on the other hand, I think it is important for us to look at 
the realities of Judge Bork’s views and the fact that the view that 
he is an extremist is just entirely wrong. 

Mr. Chairman, I have no other questions. 

Senator Metzenbaum. Thanks, Senator Grassley. The expert on 
the beer bill, as well other areas, Senator DeConcini. 

Senator DeConcini. Thank you for raising that question, Senator 
Metzenbaum. 

Senator Metzenbaum. I did not raise it. [Laughter.] 

Senator DeConcini. I appreciate your agreement that we can 
have a mark-up on that bill in your committee. 

Mr. Abrams, seeing that the bill has been raised by someone else 
here, not me, I understand that you indicated today, that your 
study shows that as a result of territorial franchises, the retail 
price of beer has gone up. Is that right? 

Mr. Abrams. That is right. Not only just gone up, Senator. 

Senator DeConcini. Yes, gone up substantially based on your 
study, the New York study. 

Mr. Abrams. And gone up beyond other products in the food- 
market basket. 

Senator DeConcini. Mr. Abrams, just for the record, because we 
are not going to debate this bill now—but just for the record, on 
August 4th when you were before the Senate in hearings, did you 
not respond to my question, that your study was based on retail 
prices, and in fact you had no evidence whatsoever to show that 
wholesale prices had gone up as a result of territorial franchise? 
Did you not say that to us? 

Mr. Abrams. Of course. Senator, because- 

Senator DeConcini. That is all I want to know because I 
think- 

Mr. Abrams. The harm is to the consumer. 

Senator DeConcini. Well, no, the point is the increase had noth¬ 
ing to do with territorial franchises because this is a wholesale ter¬ 
ritorial franchise bill. 

Now you have your position, but I resent you coming here and 
leaving an impression that you did not concur until I had to ask 
you, whether or not your statement on August 4th as to your study 
dealt with the retail prices and not with the wholesale prices, and 
that beer beverage bill deals with wholesaler and territorial fran¬ 
chises, and not retailers. 

Mr. Abrams. With all due respect. Senator, but when you have 
got an exclusive territory for a wholesaler, that impacts on the 
price that he charges to the retailer, and that impacts on the price 
he charges to the consumer. 



3525 


Senator DeConcini. Didn’t you just say, Mr, Abrams, that you 
agree with your statement of August 4th, that that study did not 
conclude, at all, that territorial franchises increase the beer price, 
or malt-beverage beer price on the wholesale level? 

Isn’t that what you said? Because I will show you the record. I 
know it is. 

Mr. Abrams. I remember what I said. All I said was that the 
study that we quoted, which was a study not prepared by any in¬ 
dustry, or for this particular issue—it was a study that is prepared 
on a regular basis, over the past decade, by the consumer affairs 
agency of the government of the city of New York—showed that 
consumer prices rose- 

Senator DeConcini. That is retail prices. 

Mr. Abrams. That is correct. 

Senator DeConcini. Okay. Well, Mr. Chairman, I am not going 
to debate this any further. I am going to put in the record, before 
its close, the exact question and quote from the August 4th hear¬ 
ing, so we can take that up at another time when the Senator from 
Ohio feels compelled, I hope, to have some mark-ups. Thank you. 

[The material follows:] 

S. 567— Malt Beverage Interbrand Competition Act 

Senator DeConcini. Mr. Abrams, let me ask you this question. Am I correct that 
the New York survey that I understand you discussed while I was not here was a 
retail beer price survey, and that based on that retail beer price survey data, you 
have drawn conclusions about wholesale prices? 

Mr. Abrams. Senator, first of all, yes. The data that was compiled, again, not by 
an industry organization, not in terms of a request to try to shore up or justify a 
specific piece of legislation that is pending before Congress, but as part and parcel of 
an overall bread basket analysis that is going on for many decades by a governmen¬ 
tal agency—obviously, there is a relationship between wholesale price and retail 
price. 

What this survey clearly showed was a price of beer before there was the creation 
of exclusive territories tracked over a 514-year period, and demonstrated that during 
that period of time when you had the elimination of transshipment and vigorous 
competition, intra-brand competition—we are talking about a product that is rather 
unique in the marketplace where there is high brand loyalty because of the hun¬ 
dreds of millions of dollars of advertising expenditure that the beer companies 
produce to generate loyalty. 

You find this precipitous increase, and you can track it week after week over a 
five-and-a-half year period. I think there is an inescapable conclusion. 

Senator DeConcini. Mr. Abrams, did you, in fact, analyze the wholesale part of it 
and the competition and the prices? Did you zero in on that? Did that study do any¬ 
thing about the wholesale prices, or was it solely what relation flows from the fact 
that retailers have to buy from wholesalers? 

Mr. Abrams. Again, Senator, what we did was show what the retail price of beer 
was week by week over a 514-period during the time that there was the imposition 
for the first time of exclusive territories. 

Senator DeConcini. Based on retail prices? 

Mr. Abrams. Correct. 

Senator Simpson. Well done. 

Senator Metzenbaum. Proceeding forward with the beer bill 
today, I will be happy to hear from Senator Specter. 

Senator Specter. Thank you very much, Mr. Chairman. 

The questions of interest to me do not go so much to the sub¬ 
stance of what Judge Bork has written, but to his comments about 
the lack of substance of congressional understanding of economics, 
and congressional understanding of the underlying antitrust laws, 
and a flavor, in some of Judge Bork’s writings, that his heavy reli- 



3526 


ance on legislative intent, and what he calls Madisonian majoritar- 
ianism, has not been applied when it comes to his analysis of the 
antitrust laws. 

That he has expressed himself, in a sense, that courts are free to 
disregard the language of the statute and disregard the structure 
of congressional intent. 

Mr. Abrams, I wonder if you would care to comment on that. 

Mr. Abrams. Yes. This is what disturbs me, and what brings me 
to my conclusion, and what brings me here today to urge his rejec¬ 
tion. 

It is out of the mainstream of the approach of judges in this 
country to just, if you disagree with Supreme Court precedent, a 
judge is free, according to Judge Bork, to just rule any way he 
wants and, you know, in terms of the Congress you can refuse to 
enforce a law if you disagree with it. 

He has strong language ridiculing the ability of Congress to legis¬ 
late sensibly in this area. He has strong adjectives applied to some 
of the most distinguished judges to ever sit on the United States 
Supreme Court—Harlan, Brandeis. 

Senator Specter. Mr. Abrams, aside from his characterizations of 
Congress as being institutionally incapable of legislating in the 
field, is he wrong about it? 

Mr. Abrams. In terms of Congress’ ability- 

Senator Specter. Of Congress’ ability to legislate in the field and, 
really, to give specific mandates to the courts to carry out a policy 
with clear-cut goals and standards. 

Mr. Abrams. Of course he is wrong. The Congress has every right 
to do it, and the Congress has done it in a very significant way. 
The antitrust laws have been one of the most significant contribu¬ 
tions of the U.S. Congress to the development of this nation, in 
terms of the building of our economy, in terms of the protection of 
our consumers. 

It has had an important social, political, and economic conse¬ 
quence for the development of this great nation for the past centu¬ 
ry. 

Senator Specter. What about the point which Judge Bork makes, 
that the economic direction of the antitrust laws was materially af¬ 
fected by his mentor, Aaron Director, and the Chicago School of Ec¬ 
onomics? That very material changes were made, and that the 
thrust of antitrust enforcement, and the thrust of economic regula¬ 
tion has really been materially advanced by the work which Mr. 
Director did, and which Judge Bork and others from the Chicago 
school did? 

Mr. Pitofsky, would you take a crack at that one. 

Mr. Pitofsky. Yes, I would have to say that is a fair appraisal. I 
believe that the Chicago school, many members reflecting Professor 
Director’s theories, have had a great influence on antitrust, in my 
opinion for the better. 

The real issue is not so much whether antitrust of the 1960s 
should have been modified—because I think most people think it 
should have and Judge Bork has been a leading figure in that 
movement—but, rather, how far the pendulum is going to swing. 

As I tried to emphasize in my testimony, while the analysis in 
“The Antitrust Paradox” is quite effective, the bottom line is really 



3527 


more extreme than any other member of the Chicago school is 
likely to advance. Certainly, it is among the most conservative. 

Senator Specter. Well, would you say overall, Mr. Pitofsky, that 
Judge Bork has had a beneficial influence in the antitrust field as 
a result of what he has written, what he has done? 

Mr. Pitofsky. I think his scholarship has contributed construc¬ 
tively to the antitrust debate. I believe, however, that if he were in 
charge of antitrust policy and could introduce his entire program, 
we would be without effective antitrust enforcement. 

Senator Specter. Do you think there is any significant likelihood 
of that on the Supreme Court, even if Judge Bork were confirmed, 
that he could so overpower the Court to have that kind of a drastic 
consequence? 

Mr. Pitofsky. No, I do not think he could overpower the Court, 
but there are only nine votes there. And what you are doing is 
adding one Justice who believes essentially that the last 50 years of 
bipartisan antitrust enforcement was largely misguided. 

Senator Specter. I have just one further question, if I may, Mr. 
Chairman. 

Senator DeConcini. Go ahead, Senator Specter. 

Senator Specter. One of the lines which is very emphatic from 
Judge Bork’s book is that “Congress as a whole is institutionally 
incapable of a sustained, rigorous, and consistent thought that the 
fashioning of a rational antitrust policy requires. No group of that 
size could accomplish the task.” 

I cite that reference because it is representative, in a sense, of 
what Judge Bork has written in other fields. And part of the eval¬ 
uation that we have to make on this committee and in the Senate 
is whether these views really represent his ultimate thought on the 
matter, or whether they are a part of the style of very forceful 
writing, as one of the professors testified to on Friday; that acade¬ 
micians approach these subjects with an overall direction to deci¬ 
mate all existing theory in institutions, if any gets in their way; 
and then to reconstruct a rationale and a philosophy to promote a 
thought; and that in this kind of very forceful language, that Judge 
Bork may really be seeking to make a point in an academic style 
as opposed to really setting down a final thought that he might 
have substantively. 

Mr. Brown. Senator Specter, I believe that he wants to bring the 
thoughts of “The Antitrust Paradox” right into his judicial work, 
because he has done that. In Rotkery, he took what was perceived 
as a rule of reason case, probably a vertical restraint case, made it 
a horizontal case in order to write his whole theory of horizontal 
boycotts and horizontal restraints of trade. 

In the Neumann case, he took, again, a pretty simple case on its 
facts, an easy case to decide, and brought in his theories on monop¬ 
olization and various predatory activities. 

So I think that his ideas between the time he wrote the book and 
the time he got on the Court remained the same, and I think he 
has made every effort to bring those ideas right into the Court 
work on the Second Circuit. So I not only see no difference, I see an 
effort to write these theories right into the law. 

Senator Specter. Thank you very much, General. 

Thank you, Mr. Chairman. 



3528 


Mr. Pitofsky. May I add just a word? There is no reason to think 
that Judge Bork has abandoned these views. That is why I quoted 
from his statement just six months ago, which is along very similar 
lines. 

Senator DeConcini. Thank you, Senator Specter. 

The Senator from Vermont. 

Senator Leahy. Thank you. 

Dean Pitofsky, let me follow up on that, because I was intrigued 
and I want to make sure I fully understand your statement. 

First, just to put it in context, Judge Bork testified that he would 
enforce the letter of the antitrust statutes. Now, do I understand 
correctly from your statement that you feel that is a change from 
his prior position? 

Mr. Pitofsky. No. His position is complex, but I do not think it is 
a change. I think if Congress pins down a judge and says do X and 
not Y, Judge Bork will do it. But I think Judge Bork’s philosophy 
is that Congress is on the wrong track in legislating in the anti¬ 
trust field; only economics counts; and a judge has the right to 
ignore loose directives from Congress. 

Senator Leahy. So that you do not see a significant shift in his 
position? 

Mr. Pitofsky. None at all. Not in this field. 

Senator Leahy. So if there was an allegation made that this was 
a confirmation conversion in antitrust, you would say not—I do not 
mean to put words in your mouth, so please correct me if I am mis¬ 
stating your position—but, rather, that what Judge Bork has done 
is very carefully to say: if I do not think you have done it right, if I 
could find any way out of it, I am going to find that way? 

Mr. Pitofsky. I think that is a fair appraisal of the way he would 
go at implementing statutes. 

May I illustrate by using the exchange that Senator Specter and 
Judge Bork engaged in last week? 

Senator Leahy. Please do. 

Mr. Pitofsky. I think it is very instructive. 

Senator Specter was asking whether or not Judge Bork would en¬ 
force the Robinson-Patman Act. There was an exchange in which 
the Judge pointed out that many people think the Act is misguid¬ 
ed. Senator Specter said, “I do not care. It is Congress’ statute. Are 
you going to enforce it or are you not?” And he said, “Yes, I will. I 
have to.” 

But I cite in my testimony an earlier exchange—before these 
hearings began—on a very similar subject in which Judge Bork 
was being taxed with the question would he enforce the Robinson- 
Patman Act. 

Senator Leahy. I am sorry. I did not hear the last part. Would 
you enforce which Act? 

Mr. Pitofsky. The Robinson-Patman Act. The statute enacted in 
1936 concerning price discrimination. 

Senator Leahy. I know. I just did not hear. 

Mr. Pitofsky. What he said then was a little different. It is con¬ 
sistent with his answer to Senator Specter, but the spin makes all 
the difference in the world. 

What he said earlier was, “The Robinson-Patman Act says price 
discrimination which injures competition is illegal. My view of eco- 



3529 


nomics tells me price discrimination never injures competition, and 
therefore, I do not have to enforce the Act.” 

He went on to say, “I thought Congress winked when it passed 
that statute, and judges do not have to enforce winks.” 

Now, this is all the difference in the world in those two re¬ 
sponses. The bottom line is that Judge Bork will not enforce the 
Robinson-Patman Act because he thinks price discrimination never 
injures competition. Many people believe that price discrimination 
does not injure competition nearly as much as we once thought, 
but very few people believe it never injures competition. 

Senator Leahy. Thank you. 

General Abrams or Mr. Brown, do you have any different feel¬ 
ings on that than Dean Pitofsky? 

Mr. Abrams. No. I subscribe to that, and I think there is so much 
in the record that indicates over a long period of time as to where 
Judge Bork is coming from. 

It is interesting to note that Judge Bork derides some of the most 
eminent judges to ever sit on the Supreme Court. Yet he singles 
out one decision of a judge for very strong praise. That is interest¬ 
ing in the context of his otherwise strong criticism and condemna¬ 
tion, and he talks about a decision of Circuit Judge Taft in 1898 in 
the Addyston Pipe case. He calls that decision “one of the greatest, 
if not the greatest, antitrust opinion in the history of the law.” 
Those were his words. 

This is what Judge Bork said the judge did, Judge Taft did in 
that opinion, and I am quoting: “He chose his common law cases 
carefully and imposed upon them his own ideas. What emerged 
was not the restatement it pretended to be so much as a new struc¬ 
ture, and he rejected in the guise of a discussion of common law 
cases Supreme Court Justice White's reasonable price standard as 
a sea of doubt.” 

So the greatest case for Judge Bork is one where a judge over¬ 
rules in the guise of restatement in order to accomplish what he 
sees as the right end result. I think that is found as a common 
strain throughout Judge Bork’s writing, throughout the literature, 
and has been pointed out not just about Judge Bork as scholar, but 
Judge Bork as judge in the written decisions that have come down. 
In both Neumann and Rothery, you see tangents. You see some¬ 
thing that most judges will not do because it is not deemed to be 
appropriate for a judge to discuss things that are not relevant to 
the facts in a given case. He will seek to go out on these tangents 
to try to put his own thoughts into case law and case opinions. 

Mr. Brown. I think Professor Pitofsky and General Abrams said 
it better than I can. 

Senator Leahy. Thank you. Thank you very much, Mr. Chair¬ 
man. 

Senator Grassley. Mr. Chairman, I have a unanimous consent 
request. 

Senator DeConcini. Can I have the request, please? 

Senator Grassley. I would like to insert after the colloquy I had 
with Senator Metzenbaum a paragraph from our hearings on 
Judge Bork when he was Professor Bork coming before our com¬ 
mittee. I think this paragraph makes very clear that the standard 



3530 


that Senator Metzenbaum was setting for the Supreme Court also 
applies to the court of appeals. 

Let me read just a short paragraph. He says this to Mr. Bork. “I 
am familiar with your views with respect to antitrust legislation, 
antitrust enforcement, and you and I are totally in disagreement 
on that subject. However, as I said at the time Justice O’Connor 
was up for confirmation, the fact that my views might differ from 
hers on any one of a number of different issues would not in any 
way affect my judgment as pertains to confirmation or failure to 
confirm a member of the judiciary.” 

So Senator Metzenbaum made the point that there was no differ ¬ 
ence between the Supreme Court and the court of appeals as far as 
he was concerned. I think what he said here 5 years ago makes 
clear, at least at that time, he had a different point of view, than 
today. 

Senator DeConcini. Without objection, that will appear in the 
record as if read and whatever else is attached thereto. 

[The information of Senator Grassley follows:] 



3531 


CONFIRMATION OF FEDERAL JUDGES 


HEARINGS 

BCFOBI TH* 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

NINETY-SEVENTH CONGRESS 

SECOND SESSION 
ON 

THE SELECTION AND CONFIRMATION OF FEDERAL JUDGES 
JANUARY 27; FEBRUARY 12. 2fl; AND HABOH 11, 24. 81. 1SS2 

Serial No, J-97-62 
PART 3 

FrlnUd for th* m of (ho Committeo on tha Jndlcixry 



OA OOTONKBiT FltHTINQ OJTICX 
WA8HINOTON; ISM 





3532 


The second point I want to make is simply this, and that is the 
reason for the discharge. The point I have just made is why there 
vas no harm to justice from the discharge. The reason for the dis¬ 
charge was that I had, I thought, to contain a very dangerous situa¬ 
tion, one that threatened the viability of the Department of Justice 
and of other parts of the executive branch. 

The President and Mr. Cox had gotten themselves, without my 
aid, into a position of confrontation. 1 have explained why the At¬ 
torney General and the Deputy Attorney General could not dis¬ 
charge Mr. Cox, and why my position was not the same as theirs 
because I had not made the representations and the assurances 
that they had, although I did make them to the people who came 
after Mr. Cox. 

I was third in line in the Department of Justice, and the Acting 
Attorney Generalship came to me automatically by operation of 
Department regulation. I was not appointed Acting Attorney Gen¬ 
eral; I became Acting Attorney General the moment those two gen¬ 
tlemen resigned. There was nobody after me in the line of succes¬ 
sion, nobody. If I resigned, there was simply nobody who stepped 
into that position. 

At that point, the President was committed because of this sym¬ 
bolic confrontation to discharging Mr. Cox. He would have'appoint- 
ed, I assume, an Acting Attorney General and he probably would 
have had to go outside the Department of Justice to do so. Perhaps 
one of the White House lawyers would have been appointed Acting 
Attorney General and would have discharged Mr. Cox. There was 
never any question that Mr. Cox, one way or another, was going to 
be discharged. 

At that point you would have had massive resignations from the 
top levels of the Department of Justice. I talked to those people, 
the other Assistant Attorneys General and their deputies. If tnat 
had happened, the Department of Justice would have lost its top 
leadership, all of it, and would I think have effectively been crip¬ 
pled. 

For that reason I acted, made the discharge, called the Depart¬ 
ment together, the leaders together, told them why I had done it, 
talked to a number of them in private. None of them left; they all 
stayed with me, stayed with the Department. 

Therefore, that was my choice, Senator. On the one hand there 
was no threat to the investigations from the discharge and no 
threat to the processes of justice. On the other hand, I preserved an 
ongoing and effective Department of Justice. The only thing that 
weighed against doing wnat I did was personal fear of the conse¬ 
quences, and I could not let that, I think, control my decision. 

Senator Baucus. I appreciate your answer. Obviously our coun¬ 
try was going through very difficult times during that period. I 
thought we both had an obligation to discuss this because you are 
going to be sitting as a Federal judge There are some people who 
would like to know what happened, what you were thinking at the 
time, what your motives were, what the explanations were for your 
actions. I think vour statement today helps explain all of that an d 
1 appreciate that statement very mucKT 

In America, Sometimes x tmnK that perhaps public officials, per¬ 
haps members of this body, should resign on the basis of principle 


3533 


11 


more often than we do. However, that is a side issue; it is not cen¬ 
tral to the point here under discussion today. 

I wish you very well as you serve on the court. 

Mr. Bork. Thankyou, Senator. 

The Chairman. The distinguished Senator from Ohio. , 

** Senator Metzenbaum. Mr. Bork, it is a pleasure to see you here 
this afternoon. I am sorry if I am late. 

I am familiar with your views with respect to antitrust legisla¬ 
tion, antitrust enforcement, and you and 1 are totally in disagree¬ 
ment on that subject. However, as I said at the time Justice O'Con¬ 
nor was up for confirmation, the fact that my views might differ 
from hers on any one of a number of different issues would not in 
any way affect my judgment as pertains to confirmation or failure 
to confirm a member of the judiciary. 

However, having said that, I have some concerns—and I think 
that Senator Thurmond has already addressed himself to some of 
those concerns. My concerns are not that your views might differ 
from mine but whether or not you would interpret the law on the 
basis of heretofore decided Supreme Court decisions. 

Your entire book is a comprehensive attack on the current anti¬ 
trust laws, and by your own admission these are the laws on the 
books as interpreted by the highest Court in the land. It was a 
great disappointment to me when Mr. Baxter appeared before our 
committee and indicated that notwithstanding that, he did not feel 
any obligation to enforce those laws. I think he was wrong. 

I do not think you are in that position. You are not up for confir¬ 
mation as an enforcement official. The concern that I have is 
whether or not you will be able to wholeheartedly apply the laws 
as previously interpreted by the Court, or are you going to start 
trimming them and cutting into them here and there to suit your 
own ideas, not of what is the law but what is good economic sense. 

I guess I know even in asking the question that you have no al¬ 
ternative but to say, “No, I am not going to. I am going to follow 
the law," and yet I think it is appropriate that we put into the 
record your response. 

Mr. Bork. I think bo. Senator. I think my response has to be 
along the lines of the response I gave to the chairman about the 
problem of judicial activism. I have long been opposed to judges 
who write their own views into the law rather uian what they 
think, on the basis of principled interpretation, the law is. I would 
be false to those views if I interpreted the antitrust laws in a way 
that I did not think the law really was or in a way contrary to the 
interpretation piven to them by the Supreme Court 

I think that is true of any field of law. I assume. Senatorial in 
fields I have never written about-and therefore nobody caxSreally 
question me about, that I will often think that the law I am called 
upon to apply is not a terribly good law. 

However, that is not my business as a judge. My business, par¬ 
ticularly as a lower court judge, is to be obedient to the Supreme 
Court’s interpretation of the law. Otherwise, our legal system falls 
into chaos. The Supreme Court cannot take enough cases every 
year to straighten out all of the lower court judges ifthey all began 
to interpret the law according to their own views rather than ac- 



3534 


Senator DeConcini. Is there anyone else? The Senator from 
Utah. 

Senator Hatch. Maybe Senator Metzenbaum has changed his 
mind, like Judge Bork. 

Senator Leahy. Would it not be a little bit more fair to wait 
until Senator Metzenbaum has a chance to get back so he could re¬ 
spond? 

Senator Hatch. I did not mean that as a crass comment. I am 
amazed that you would leap to make a fuss about it when I am just 
trying to make the point that people with good minds change them 
once in a while, including Senator Metzenbaum. Do not always 
read vile things into what I say, Senator. 

I have to admit that there are a lot of vile things about these 
hearings that I feel have pervaded the hearings, and I will mention 
one of them in the next round that I get. 

Mr. Abrams, how do other State Attorneys General feel about 
Judge Bork’s views on antitrust? 

Mr. Abrams. Well, I am here, as I said at the outset in my state¬ 
ment, Senator Hatch- 

Senator Hatch. Well, answer my question. I know how you feel. 

Mr. Abrams. I am here personally, and I am not here represent¬ 
ing— 

Senator Hatch. How do the other State Attorneys General feel? 

Mr. Abrams. We have not done a head count, but I would suspect 
it is fair to say that there are a large number who oppose Judge 
Bork who have similar views to mine and there are some who 
would support him. 

I can say this: That in terms of uniformity of antitrust policy and 
our approach to enforcement and to retention of strong antitrust 
principles in the law was expressed when State Attorneys General 
agreed on certain substantive standard. In one instance we adopted 
vertical restraint guidelines unanimously, and in another instance 
our merger guidelines were adopted with a few negative votes. But 
we came together in a bipartisan way to reinforce our commitment 
to the enforcement of antitrust laws. 

Senator Hatch. Well, I think Judge Bork would do the same, feel 
very much the same. 

I understand that you claim the support of all the State Attor¬ 
neys General for so-called merger guidelines which were drafted 
largely by the New York Attorney General's office. 

Mr. Brown. Not quite all. There were two dissents. 

Mr. Abrams. No. There were a couple of people who dissented—I 
think everybody voted for them except two States. 

Senator Hatch. I have been led to believe there was as many as 
half the States Attorneys General did not actually vote for them. 
Am I wrong on that? 

Mr. Brown. Just the Attorney General of New Mexico and the 
Attorney General of your State, Senator Hatch, formally dissented 
from that vote. 

Senator Hatch. Dean Pitofsky, you have been cited as supporting 
the view that the antitrust laws should be used as a leveler of 
wealth and political influence. Is that a fair characterization? 

Mr. Pitofsky. No, it certainly is not. 



3535 


Senator Hatch. All right. Then I will not ask any other ques¬ 
tions. I just wanted to know if that was fair, because Judge Bork’s 
position, at least what he has said, is that the legitimate goal of 
American antitrust laws, of course, is the maximization of con¬ 
sumer welfare. I have to admit there are different points of view as 
to how you maximize consumer welfare, and his has been, I think, 
relatively widely accepted, certainly by 15 past section leaders, 
presidents of the ABA section on antitrust. 

But be that as it may, I will not ask any further questions. 
Thank you, Mr. Chairman. 

Senator DeConcini. Thank you. Senator Hatch. 

The Senator from Alabama, Senator Heflin. 

Senator Heflin. Each of you in your analysis of Judge Bork’s 
views on antitrust focused primarily on his book, and also his writ¬ 
ings in the decisions of Rothery and Neumann. But since he has 
written his book, are there any additional writings or speeches that 
would give any indication of his thought as to whether they have 
changed from his book? 

In other words, the area of speeches and writings as opposed to 
these two decisions. 

Mr. Pitofsky. Yes. Judge Bork has been a lively participant on 
the lecture trail. He has spoken frequently. My view is that he has 
not departed in any significant way from his lifetime of work in 
the antitrust field which culminated in this book. He wrote many 
articles before he wrote the book; he pulled them all together in 
the book; and so far as I can see, unlike his record in civil rights 
and constitutional law, he has not changed his mind. 

Senator Heflin. I understand that all of you are concerned about 
what Judge Bork might do if confirmed, but what indications do 
you have that the Court as a whole would be willing to go along 
with Judge Bork’s views in this area? Has the Court handed down 
any decisions within fairly recent times that would indicate that 
they appear to be wavering on any of the issues you have raised? 
For example, the per se illegality of resale price maintenance. 

Has the Court or members of the Court indicated in their deci¬ 
sions matters that you would feel that they would be willing to go 
along with him? 

Mr. Brown. Well, Senator Heflin, the Court is certainly much 
more balanced than it was, say, in the Warren era where Justice 
Stewart said in a dissent the Government always wins. I think as a 
Supreme Court Justice, Justice Bork would go the other way and 
the other side would always win. 

It is hard to make predictions about the Court, but he would be 
the one antitrust lawyer on the Court. Therefore, I think it is 
likely that he will play an authorship role quite frequently, as one 
that is not an expert on the Supreme Court. But that would be a 
guess of mine to think that if he could assemble anything near a 
majority or if it were plurality decisions where the Court were di¬ 
vided, he would likely play an authorship role simply because they 
would say, well, you are the person on this Court that knows anti¬ 
trust law; why do you not take a swing at the opinion? 

That is speculation from this one Attorney General. 

Mr. Pitofsky. Senator, Justice Powell was a moderate to conserv¬ 
ative Justice on antitrust issues already. Therefore, substituting 



3536 


Judge Bork for Justice Powell is not going to be a seat change. It 
would not be fair to argue that. 

However, Judge Bork certainly is a more theoretical conservative 
than Justice Powell ever was, and in close cases I would think that 
he would make a difference on the Court. 

Mr. Abrams. Senator, may I add another thought? 

We know that any word, any phrase, any thought that is found 
in a Supreme Court opinion is given weight, is analyzed, is quoted, 
is cited; and we also know that Judge Bork, since coming on the 
bench in a couple of cases, in Neumann and Rothery, has been will¬ 
ing to go well beyond whatever were the defined issues in that 
case, whatever were the facts of that case to talk about other theo¬ 
ries and issues that he has felt strongly about. 

So I think one of the potential dangers is that, in writing opin¬ 
ions as a Justice of the Supreme Court, these attitudes and views 
which have been at variance with the will of Congress, with Su¬ 
preme Court precedent, would be gratuitously inserted into opin¬ 
ions and would represent a danger for those of us who think that 
the Congress has been right in keeping this country in a certain 
direction in the antitrust area. 

Senator DeConcini. Thank you, Senator Heflin. 

Are there any other questions of the panel? 

Senator Thurmond. I think that is all, Mr. Chairman. 

Senator DeConcini. Thank you, gentlemen, very much for your 
testimony and the time that you took to be here today for this 
effort. 

There is a vote on at this time, and we will return, let us see— 
the chairman will be returning after the vote. We will go ahead 
and proceed with the next witness, Ms. Beverly LaHaye of Con¬ 
cerned Women for America. If she would please step forward. 

Ms. LaHaye, good morning and welcome. Would you raise your 
right hand? 

Do you solemnly swear the testimony you are about to give today 
is the truth, the whole truth, and nothing but the truth, so help 
you God? 

Ms. LaHaye. I do. 

Senator DeConcini. Thank you. 

Despite the time restraints, Ms. LaHaye, I am glad that you are 
able to testify. Will you please proceed for 5 minutes and then it 
will be opened to questions. 



3537 


TESTIMONY OF BEVERLY LaHAYE 

Ms. LaHaye. Thank you. I thank you for the opportunity to 
speak for a large number of women in America. 

As the president and founder of Concerned Women For America, 
one of the largest women’s activist organizations, I appear before 
you to dispel the myth that mainstream American women fear the 
confirmation of Judge Robert Bork. Our concern is to ensure that 
the vocal minorities perpetuating this myth do not succeed in their 
deception that they speak for all women. The hundreds of thou¬ 
sands of citizens I represent here today include women from all 
walks of life and varying backgrounds. Liberal women have fought 
against four of the last five nominations to the Supreme Court, and 
they oppose Judge Bork for refusing to extend the Constitution to 
include their own biased agenda. 

What the majority of American women value is equality under 
the law, the preservation of the family, and the establishment of 
laws which protect women in their uniqueness as women. 

The women of today and of the future do not need a Justice who 
destroys the rights of Americans to create laws as they see fit. 
Judge Bork believes the law of the land should be made by men 
and women through their elected officials, guided by the Constitu¬ 
tion. He consistently refuses to usurp the powers of the people. In¬ 
stead, he correctly views the Court’s role as the interpretor of the 
laws made by men and women. His only agenda is strict adherence 
to the separation of powers and preservation of the basic timeless 
values envisioned by our Founding Fathers. This is also Concerned 
Women For America’s only agenda when evaluating a Supreme 
Court nominee. Unlike Judge Bork’s opponents, we place no other 
litmus test before this or any other Supreme Court nominee. 

Judge Bork's record and testimony before this committee demon¬ 
strates his belief that women are capable, first-class citizens deserv¬ 
ing of equal protection under the law. As an educated judicial 
scholar, he adheres to the already established support structure 
necessary for women to determine their own destiny in the pursuit 
of any career they choose, excelling to the limits of their capabili¬ 
ties. He does not view women as a special interest group to whom 
he must cater. He views women and men as equal citizens under 
the law. Is this not what women have been striving for—to be 
treated as equals and not as frail creatures in need of a judge to 
grant them special privileges? 

The most powerful right available to any American is the right 
to vote. Judge Bork believes that powers not given specifically to 
the courts by the Constitution are to be returned to the people and 
the States. He respects my right to voice my opinions on the issues, 
as a woman, and as an American, through the election of officials 
reflecting my values. With Judge Bork, all Americans can be cer¬ 
tain their rights will remain intact. 

We do not know how Judge Bork morally or emotionally feels 
about many controversial issues. His absolute belief in judicial re¬ 
straint assures us that he will not attempt to force his personal or 
political philosophy on any of us. 

Concerned Women For America is committed to working for 
Judge Bork’s confirmation to the Supreme Court. We have collect- 



3538 


ed over 76,000 petitions from across the country urging his confir¬ 
mation. Last week, we held our fourth annual convention. Over 
1,300 of CWA’s leaders gathered to plan strategy on behalf of 
Judge Bork for the days remaining until the vote of confirmation. 
Just last Thursday, hundreds of women arrived in Washington to 
walk the halls of Congress and meet with their Senators, urging 
them to swiftly return our nation’s highest Court to its full statute 
with the confirmation of President Reagan’s sterling nominee, 
Judge Robert Bork. 

Unlike the false claims made by some members of the Senate, 
what women of America fear most are those elected officials who 
wish to place unbridled power into the hands of judges they know 
will further their own personal political agendas. The women of 
America I represent place trust and confidence in Judge Robert 
Bork to leave politics to the politicians and power to the people. 

A vote for Judge Bork is a vote for government by the people. As 
a citizen, I urge you on this committee to confirm Judge Bork to 
the U.S. Supreme Court. As a woman, I urge you to confirm him 
swiftly. 

[Prepared statement follows:] 



3539 


Testimony of Bavarlv LaHava 
President. Concerned Women for America 

As the President and Founder of one of the nation's largest 
women's activist organization, I appear before you to dispel the 
myth that mainstream American women fear the confirmation of Judge 
Robert Bork. Our concern is to ensure that the vocal minorities 
perpetuating this myth do not succeed in their deception that 
they speak for all women. The hundreds of thousands of citizens I 
represent here today include women from all walks of life and 
varying backgrounds. Liberal women have fought against four of 
the last five nominations to the Supreme Court, and they oppose 
Judge Bork for refusing to extend the Constitution to include 
their own biased agenda. 

What the majority of American women value is equality under 
the law, the preservation of the family, and the establishment of 
laws which protect women in their uniqueness as women. The women 
of today and of the future do not need a justice who destroys the 
rights of Americans to create laws as they see fit. Judge Bork 
believes the law of the land should be made by men and women 
through their elected officials, guided by the Constitution. He 
consistently refuses to usurp the powers of the people. Instead, 
he correctly views the Court’s role as the interpreter of the 
laws made by men and women. His only agenda is strict adherence 
to the Separation of Powers and preservation of the basic 
timeless values envisioned by our founding fathers. This is also 
Concerned Women for America's only agenda when evaluating a 
Supreme Court nominee. Unlike Judge Bork's opponents, we place no 
other litmus test before this or any other Supreme Court nominee. 

Judge Bork's record and testimony before this committee 
demonstrates his belief that women are capable, first-class 
citizens deserving of equal protection under the law. As an 
educated judicial scholar, he adheres to the already established 
support structure necessary for women to determine their own 
destiny in the pursuit of any career they choose, excelling to 
the limits of their capabilities. He does not view women as a 
special interest group to whom he must cater. He views women and 
men as equal citizens under the law. Isn’t this what women have 


88-37A 0-89-27 



3540 


been striving for — to be treated as equals and not as frail 
creatures in need of a judge to grant then special privileges. 

The most powerful right available to any American is the 
right to vote. Judge Bork believes that powers not given 
specifically to the Courts by the Constitution are to be returned 
to the people and the states. He respects my right to voice my 
opinions on the issues, as a woman, and as an American, through 
the election of officials reflecting my values. With Judge Dork, 
all Americans can be certain their rights will remain intact. 

He do not know how Judge Bork morally or emotionally feels 
about many controversial issues. His absolute belief in judicial 
restraint assures us that he will not attempt to force his 
persomal or political philosophy on any of us. 

Concerned Homan for America is committed to working for Judge 
Pork's confirmation to the Supreme Court. He have collected over 
74,000 petitions from across the country urging his confirmation. 
Last week, we held our fourth annual convention. Over 1300 of 
CWA's leedere gathered to plan etrategy on behalf of Judge Bork 
for the days remaining until the vote of confirmation. Last 
Thursday, hundreds of women arrived in Washington to walk the 
hells of Congress end meet with their Senators, urging them to 
swiftly return our nation's highest court to its full stature 
with the confirmation of President Reagan's sterling nominee: 
Judge Robert Bork. 

Unlike the false claims made by some members of the Senate, 
what women of American fear most are those elected officals who 
wish to place unbridled power into the hands of judges they know 
will further their own personal political agendas. The women of 
America I represent, place trust and confidence in Judge Robert 
Bork to leave politics to the politicians and power to the people. 

A vote for Judge Bork is a vote for government by the 
people. As a citizen, I urge you to confirm Judge Bork to the 
United States Supreme Court. Ae a woman, I urge you to confirm 
him swiftly. 

Staff Contact: Elizabeth Replay 

Director, Legislative Affairs 
628-3014 

Press Contact: Rebecca Redd Hagelin 

Director, Communications 
521-3262 




3541 


Senator DeConcini. Ms. LaHaye, thank you very much for that 
testimony. 

I am interested in the background. Is your organization. Con¬ 
cerned Women For America, a political organization, a professional 
organization, or an association of clubs or groups in different 
states? Can you give me just a little bit of information? 

Ms. LaHaye. It is made up individuals who come together be¬ 
cause of the agreement on certain issues and philosophies for 
America based on moral, social issues, the family. 

Senator DeConcini. And it takes political positions, stances? 

Ms. LaHaye. Yes. 

Senator DeConcini. Just out of curiosity, did the Concerned 
Women For America take a position on the Equal Rights Amend¬ 
ment? 

Ms. LaHaye. Yes, we did. 

Senator DeConcini. And what was that position? 

Ms. LaHaye. We were opposed to the Equal Rights Amendment 
as being part of our Constitution. 

Senator DeConcini. And what about the Equal Equity for Pay 
Act that is pending? Has your organization looked at that legisla¬ 
tion? 

Ms. LaHaye. We believe in equal pay for equal work. 

Senator DeConcini. You support the legislation, then, equal pay 
for equal work? 

Ms. LaHaye. Yes, we do. We support equal pay for equal work, 
equal work defined as the same job, not comparable worth. We do 
not support any pay equity or comparable worth legislation—past, 
present or future. 

Senator DeConcini. Thank you. 

Your organization has reviewed Judge Bork’s qualifications, obvi¬ 
ously. 

Ms. LaHaye. Yes, we have. 

Senator DeConcini. Do you have a vote on him or do you have 
an executive committee? How do you come to the conclusion to 
take a position? 

Ms. LaHaye. We have come to our conclusion—we have State 
leaders all across the United States. We have come together, and 
there has been no one who has opposed it. 

Senator DeConcini. And did you take a position on Justices 
Scalia, O’Connor or Rehnquist or all of them? 

Ms. LaHaye. We took a position on Scalia and Rehnquist. 

Senator DeConcini. And O’Connor? 

Ms. LaHaye. We were not really in the mainstream at that time. 

Senator DeConcini. You mean you were not in existence? 

Ms. LaHaye. We were in existence,' but we were just really get¬ 
ting our States organized. 

Senator DeConcini. The National Right-to-Life opposed O’Con¬ 
nor, testified in opposition to her. Did your organization have any 
feelings for her? 

Ms. LaHaye. We made no statement one way or the other. 

Senator DeConcini. Thank you. I have no other questions. 

The Senator from New Hampshire. 

Thank you veiy much, Ms. LaHaye. I am going to go vote, and 
the Chairman will be back shortly. 



3542 


Senator Humphrey. Thank you, Mr. Chairman. 

Ms. LaHaye, how many members are there in Concerned Women 
For America? 

Ms. LaHaye. The latest figure as of yesterday, 573,785. 

Senator Humphrey. These are people who pay dues? Is that the 
idea? 

Ms. LaHaye. These are people who have been with us from vary¬ 
ing points, either from our very beginning or they have come on at 
any time during the 9 years that we have been in existence. We do 
not drop them unless they request to be dropped. 

Senator Humphrey. I think probably rather few Americans have 
heard of CWA, Concerned Women For America, and I think I know 
why. But before I express my thoughts on that subject, do you 
happen to know how many members are in the National Organiza¬ 
tion of Women? 

Ms. LaHaye. I am afraid I cannot answer that question. 

Senator Humphrey. In any event, I have to say that organiza¬ 
tions like NOW get far more play in the press and in the news 
media in general them do organizations like CWA. There is a cer¬ 
tain media bias; one sees it over and over. 

You know, in connection with that, I recall just a few days ago 
when retired Chief Justice Burger testified before this committee, 
providing eloquent testimony on behalf of the nominee—as did the 
same day a few hours later by Lloyd Cutler; I think it was the 
same day—do you know on which page in the Washington Post 
that story appeared? Page 3. 

Now, here is a retired Supreme Court Chief Justice and, in addi¬ 
tion, another individual who was President Carter’s principal ad¬ 
viser in the area of law within the White House, the White House 
counsel, and that story appeared on page 3. It gives you some idea 
of the kind of skewing that the elite media are engaged in in this 
process. I think it is unfortunate. People ought to factor that in 
when making their personal judgments. I am not talking about 
Senators, but individual citizens might want to factor that in. 

They probably have never heard of CWA, but they hear all of the 
time about NOW as though NOW were the only organization of 
women in the country, and, indeed, as though NOW represented 
every woman in the country. That is a misrepresentation, of 
course. 

The issue that has been developed in these hearings which is of 
greatest concern to women, it would seem, is the privacy issue. All 
kinds of scary images have been conjured up by the opponents, 
whether deliberately or not, to the effect that there might be a gov¬ 
ernment television camera in everyone's bedroom, if you listen to 
some of these people. 

The fact of the matter is that the debate is not over whether 
there is protection of privacy in the Constitution; surely, there is 
explicit protection in the first amendment and fourth amendment 
and in many contexts. 

The question at the heart of the debate is: Is there any limit on 
privacy? How broad is this right of privacy? Most of those who 
oppose Judge Bork believe that that privacy right is virtually un¬ 
bounded; that, for example, the legislatures have no authority be¬ 
cause of this unbounded right of privacy to make prostitution un- 



3543 


lawful; that legislatures have no authority to make use of illicit 
drugs unlawful, provided that activity is carried out in private; or 
legislatures have no authority to regulate the creation and distri¬ 
bution and use of pornography. 

And that is not just rhetoric on my part. Let me read from an 
article, or I should say an excerpt from a book written by one of 
the witnesses who appeared yesterday or the day before in opposi¬ 
tion to Robert Bork, Professor Richards, from his book, ‘'Sex, 
Drugs, Death and The Law.” 

He has this to say about drug use and the right to privacy: 
“Higher-order interests in freedom and rationality would identify 
respect for choices to use of drugs as an aspect of personal dignity 
that is worth protection under the constitutional right of privacy 
and call for its implementation by courts and legislatures.” 

In other words, he thinks the privacy right is so broad that legis¬ 
latures have no authority and no business making illicit drug use 
unlawful. 

If those who see and find and believe in an unbounded right to 
privacy were to prevail in this country and prostitution became 
perfectly lawful and the use of pornography perfectly lawful in 
every respect and drug abuse, what effect do you suppose that 
would have on the family? 

Ms. LaHaye. It would be devastating to the family, certainly. It 
would destroy the values, the moral values and the strength of 
every community in America, because you would no longer have 
controls over keeping the streets free and safe for children, for 
women. It would be a dreadful situation. 

Senator Humphrey. Well, those who believe in an unbounded 
right of privacy, it seems to me, believe not in freedom but in li¬ 
cense. That is not our system. We have a system of ordered liberty 
in which decisions, controversial decisions about which the Consti¬ 
tution does not clearly speak, either directly or by reasonable infer¬ 
ence, such decisions are left to elected representatives of the 
people, legislators. Those who favor this broad, unbounded right to 
privacy would give, do give to judges authority that belongs to the 
people, to legislators, to persons who are accountable to the people. 
Judges, after all, are not accountable to the people. Once con¬ 
firmed, they hold office for life, and that seems to me a very dan¬ 
gerous thing. 

That is really what this whole debate is about. It is between 
those who think that judges ought to substitute their judgment in 
cases where the Constitution does not speak clearly, directly or by 
reasonable inference, and those who think that where the Constitu¬ 
tion does not speak clearly we ought to leave it to the legislators to 
make decisions. 

Am I not right in that analysis? 

Ms. LaHaye. That is right. And I think the whole discussion that 
we have been hearing is of grave concern to me, because we have 
got to remember that the laws are made by the people not by the 
courts. 

Senator Humphrey. Yes. 

Ms. LaHaye. And we hear about all these attorneys that are so- 
called opposed to Bork. It is we the people who are America, we 
the people who get to state who is on the Supreme Court. 



3544 


Senator Humphrey. Thank you. 

Senator Hatch. Ms. LaHaye, I guess I will go ahead since nobody 
else is here. Welcome to the committee. We are very, very happy to 
have you here with us. 

You know, over and over again during these hearings and the 
national advertising campaign against Judge Bork, we have heard 
how frightened women should be about this nomination. Two days 
ago, I mentioned the Lou Harris poll. I am really offended by that 
poll. 

Let me spend a few minutes, because I think you will be, too. 
Overnight, that poll was given considerable attention on basically 
every network news show. The only thing we hear, however, is the 
conclusion: 57 percent would turn Bork down and only 29 percent 
of the American people would confirm him. 

Now, we were told that that is what the American people be¬ 
lieved should be done, but let us just take a look at that poll to see 
if it really supports that conclusion. Now, the poll sets out to be a 
model of fairness by giving two pro-Bork questions and two anti- 
Bork questions. Now, absolute fairness, it seems to me, would 
ensure that the subject does not have a skewed view when the final 
question is asked. That seems to be the only attempt at fairness in 
this poll, and from there on it is downhill fast. 

Let us just read the first pro-Bork question. Remember, this is 
supposed to favor Judge Bork’s position so that the subject will not 
receive a slanted view. It starts off, “Judge Bork seems to be well 
informed about the law.” Already the poll begs the question of 
whether he is informed or only “seems to be. Some may think 
that is nitpicking, so let us just continue through the whole quote. 

“Judge Bork seems to be well informed about the law, and such 
qualifications are worth more than where he stands on giving mi¬ 
norities equal treatment, protecting the privacy of individuals or 
other issues.” It is an abominable question, and that is supposed to 
be pro-Bork. 

For heaven’s sake, in order to vote for Judge Bork on this ques¬ 
tion, you would have to be against equal treatment for minorities, 
women, protecting privacy and other issues of critical importance. 
The marvel is that Judge Bork only lost by two points on that par¬ 
ticular question. 

Now, if that was not so bad, let us look at the second pro-Bork 
question. And I might add, if you think this is bad, wait until we 
get to the anti-Bork questions that are clearly labeled like that in 
this questionnaire. 

The second pro-Bork question is, “If President Reagan says that 
Judge Bork is totally qualified to be on the Supreme Court, then 
that is enough for me to favor the Senate confirming his nomina¬ 
tion.” 

Now, that is a classic. The subject is asked to admit that the 
President does all their thinking for them, and I think that is an 
insult to the person being polled. And anybody who answers yes 
would have to be shameless. As strongly as I support Judge Bork, it 
is only after years of reading his opinions, knowing what he has 
done, reading his articles, knowing the man personally. I think if 
people could get to know him like that, there is no question it 
would be an overwhelming victory for him. 



3545 


If these two pro-Bork questions were asked of the committee, I 
am sure that neither question would get a single vote. Nonetheless, 
27 percent blindly followed the President and said yes to Question 
No. 2, the second pro-Bork question. 

Now come the anti-Bork questions. We have finished the ques¬ 
tions that were supposed to make you like the man. The first anti- 
Bork question, clearly labeled as such on the questionnaire, says, 
“Judge Bork has said, ‘When a State passes a law prohibiting a 
married couple from using birth control devices in the privacy of 
their own home, there is nothing in the Constitution that says the 
Supreme Court should protect such married people’s right to priva¬ 
cy.’ ” Now, that kind of a statement worries me. It has got to worry 
you. It has got to worry anybody who wants fairness in this proc¬ 
ess. This is not some two-bit high school political campaign for 
senior class. 

This is the Supreme Court of the United States. What that does 
is that question evokes images of bedroom searches. If someone 
asks anyone in this room if they’re worried about police raids in 
their bedrooms in the middle of the night, I think we could predict 
the answer on that. 

By the way, I seriously doubt if this is a Bork quote that they 
cite it as because he repeatedly said that the Connecticut law was 
never used and never could be used to invade the privacy of the 
home. Nonetheless, the quote is attributed to Bork. 

The amazing thing about that question and about the poll is that 
27 percent say again that they are not worried by this quote. Now, 
we haven’t finished yet. We still have the second anti-Bork ques¬ 
tion, and it’s a beauty. 

It says, quote, “Judge Bork seems to be too much of an extreme 
conservative, and if confirmed, he would do the country harm by 
allowing the Supreme Court to turn back the clock on rights for 
minorities, women, abortion and other areas of equal justice for all 
people,” unquote. 

Now, that’s incredible. Just listen to the litany. He’s too extreme. 
He'll do the country harm. He’ll turn back the clock. He’ll harm 
rights of minorities, harm women, abortion, and other areas of 
equal justice for all people. 

Now, after that litany, if anyone would actually vote for Judge 
Bork, we wouldn’t want him if that’s the type of a truthful ques¬ 
tion that could be asked, you know, that you would expect. Actual¬ 
ly it’s totally slanted and totally a distortion, and it really bothers 
me. It’s got me very upset to see this type of stuff, and it’s garbage 
passed off too the American people on network news all over this 
country. 

Now comes the big question. After the pro-Bork questions have 
slandered him and the anti-Bork questions have defamed, what’s 
left to say? You know, it’s quite a one-two punch. The big question 
is asked. 

It starts this way, quote, “All in all,” now, there’s nothing too 
subtle here. They don’t want you to miss the point. After they’ve 
called Bork a bedroom invading bigot, they want to make sure you 
remember it so they ask this. 



3546 


Quote, “All in all, if you had to say, do you think the U.S. Senate 
should confirm or turn down the nomination of Judge Bork to be 
on the U.S. Supreme Court?”, unquote. 

Surprise. Surprise. The real surprise is that 29 percent actually 
voted to confirm the monster described in the poll. My only ques¬ 
tion is how Lou Harris can, with a straight face, announce that 
conclusion, quote, “Public opposes Bork 57 to 29,” unquote. 

The only thing that that poll shows or proves is that the public 
hates bedroom invading bigots, it seems to me. Now, that's not the 
art of polling. It is the art of character assassination, and that’s 
what’s going on here. 

I think this is the worst of everything we’ve talked about 
through this whole hearing. It’s not a political circus. This has 
become a freak sideshow because of things like that that are passed 
off as credible and passed off on network news and that bothers me 
a lot. 

I might add, you know, it’s something that I, you’d have to call a 
cheap political shot, I would call those who did that poll political 
gigolos. That’s what I’d call them. That’s how bad it is, and I’m dis¬ 
gusted with it, and I think that the network news shows ought to 
check behind the scenes behind their announcements and see if it’s 
worthy of being broadcast. 

His poll was so bad doing the same character assassination Jus¬ 
tice Rehnquist when that happened that the major networks I 
don’t even think even ran it. I was told by some of them that; they 
were so disgusted with the type of questions that were asked. Why 
didn’t they look behind this one? Why didn’t they look for these 
questions? 

Look, I think anybody has a right to poll no matter what. That’s 
one of the freedoms and rights we have, but nobody has a right to 
character assassination, and frankly, that’s what’s going on here, 
and this is just an illustration of it. 

I want to ask one question but go ahead. 

Senator Humphrey. Will the Senator yield for a question? Is the 
Senator making this poll available to the press? 

Senator Hatch. Yes, I’ll be happy to do that. We’ll make it a 
part of the record. It’s just a questionnaire form that I can make 
available, the one that was actually used by the people. 

The Chairman. We’ll make the whole questionnaire and the 
entire poll part of the record. 

Senator Hatch. That would be fine, if you have the whole poll. I 
don't. 

The Chairman. I don’t, but I’m sure Mr. Harris would want to 
give to us now. 

[The questionnaire follows:] 



3547 


The Harris Survey 


For release: Monday AM, September 20, 1987 1987 141 

ISSN 0273-1037 


PUBLIC OPPOSES BORK NOMINATION BY 59-27Z 


By Louis Karris 

By a clear-cut 57-29 percent, the American people believe the U.S. Senate 
should turn down, not confirm, the nomination of Judge Robert Boric to the U.S, Supreme 
Court. While 14 percent are still undecided, nonetheless it now appears that a decisive 
majority have decided they would prefer Judge Boric not to become part of the high court. 

These results, according to the latest Harris Survey of a cross section of 1,249 
adult* nationwide and talcen by telephone between September 17th and 23rd, reflect public 
reaction to Bork's own testimony on the stand, and not the subsequent comments, pro and 
con, after he finished his appearance before the Senate Judiciary conruttee. 
Significantly, among those who said they saw the hearings on TV ©r who followed them 
closely in the newspapers, a higher 81-32 percent majority oppose confirmation of Bork. 
Thu*, the evidence is that the Judge did not help himself in his testimony. 

Indeed, no more than 57 percent of the adult public say they have paid close 
attention to the Bork hearings. This is far below the 70 percent, for example, who saw or 
followed the Iran-Contra hearings when Lt. Col. Oliver North testified. Most curious is 
the fall-off of viewing of the Bork hearing* among conservatives. Only 53 percent of all 
conservatives say they have followed the Judiciary Committee hearings, compared with 62 
percent of moderates and 66 percent of liberals. This would indicate that many 
conservatives have not been pleased with some of the answers which Bork has given, *uch as 
his seeming contradiction of his previous stands critical of high court decisions in cases 
involving abortion, privacy, and other controversial cases. 

Significant as well is the fact that when asked up or down whether Judge Bork 
should be confirmed, conservative* opt for confirmation, but only by a narrow 44-40 
percent margin, compared with opposition among moderates by 61-30 percent and by liberals 
by a massive 79-13 petcent. Among those who voted fot Ronald Reagan in 1984, only a 
slender 45-42 percent plurality favor confirming Bork. A slightly higher 48-38 percent 
plurality among Republicans feel the same way. By contrast, independents are against Bork 
by 60-30 percent and Democrats by 70-16 percent. 

In other key divisions, all regions of the country oppose Judge Bork's 
confirmation: the East by 56-29 percent, the Midwest by 60-29 percent, the South by 55-31 
percent, and the West by 58-28 percent. Men oppose him by 55-36 percent, but women by a 
higher 59-23 percent. Whites oppose his confirmation by 55-31 percent, blacks by 71-15 
percent, and Hxspamcs by 62-27 percent. The pattern by education is interesting: those 
with a post graduate degree oppose Bork by a close 47-45 percent, while those with a four 
year college degree oppose him by s wider S2-38 percent, end those with less than a high 
school education oppoee him by 64-17 percent. 

When some of the arguments which have been made about Bork — pro and con — are 
tested, it 1* evident immediately that his supporters have not made a strong case for him, 
while opponents have been more convincing to the public: 

-- Hy 67-27 percent, a bio majority of the public disagrees with the view 
that "if President Reagan says that Judge Bork is totally qualified to be on the Supreme 
Court, then that’s enough for me to favor the Senate confirming his nomination." 
Normally, past surveys hsve shown that the people are inclined to go along with most 
nominees selected by a president. Indeed, in the case of the elevation of Justice William 
Rehnquist to the post of Chief Justice last year, a clear 57-39 percent majority expressed 
sympathy with tha view that the President's choice should be backed up. This can be taken 
to mean that with public confidence in President Reagan reduced, the fact that he named 
Bork apperently carries less weight than before. 


(over) 




3548 


THE HARRIS SURVEY 


September 28, 1987 


— The claim of Judge Boric's backers that he is "well-informed about the 
law, and such qualifications are worth more than where he stands on giving minorities 
equal treatment, protecting the privacy of individuals, and other issues" meets with a 
narrow 43-41 percent rejection by the public. This indicates that Judge Bork perhaps did 
not impress the public viewing him as nearly as erudite and steeped in the law as his 
supporter* have claimed. Those who viewed the hearings deny the claim that his legal 
literacy should count heavily by a higher 50-37 percent. 

-- Most damaging to Bork is his statement early on that "when a state 
passes a law prohibiting a married couple from using birth control devices in the privacy 
of their own home, there is nothing in the Constitution that says the Supreme Court should 
protect such married people's right to privacy,” which worries a 68-27 parcent majority. 

— Also, even though much of his testimony vigorously denied it, a 47-41 
percent plurality of the public goes along with the criticism that "Judge Bork seems to ba 
too much of an extreme conservative, and, if confirmed, he would do the country berm by 
allowing the Supreme Court to turn beck the clock on rights for minorities, women, 
abortion, amd other areas ef egmal justice for ell people." 

Taken aa a whole, it is evident that Judge Bork hes mot made a convincing case 
for his semination to the high court. 


T A 1 L ■ I 

Between September 17th and 23rd, 1987, e natiemal cross section ef 1,24* adults 

wee asked: 

"Aa you know, the Bernete is balding hearings on whether or set te eemflrs 
President Be ages'« nomination ef Judge PSbert Berk te ha e Just lee on the v.t. Supreme 
Court. Have you mn or follow e d any ef the hearings #n TV amd In the newspapers, or 
mot?" 


roujowcD bqvk miwa 


e ec felLewed 
see n or f»L 
sure 


57 

42 

1 

at the Bork a sm la at lee, far each, tel' 


f*0 DM) COH ON BOBS MH1HKIQM 


tViyff hot prt 


Judge Berk seems te ha well 
informed about the law, and such 
qualifications are werth mere then 
where he stands en giving minor¬ 
ities eguel treatment, protecting 
the privacy of individuals, or 
other issue* 

Zf President Reagan says that 
Judge Bork is totally qualified 
to be on the Supreme Court, then 
that's enough for me to favor the 
Senate confirming hi* nominetie® 


(continued) 



3549 


THE HARRIS SURVEY 


September 28, 1987 


STATEMENTS PRO AND COW OH BORA NOMINATION (cont'dj 

Agree Disagree Hot sure 
% * % 

AWTI-BORK STATEMENTS 

Judge Bork has said, "when a state 
passes a law prohibiting a married 
couple from using birth control 
devices in the privacy of their 
own home, there is nothing in the 
Constitution that says the 
Supreme Court should protect such 
married people's right to privacy." 

That kind of statement worries me 6B 27 5 

Judge Bork seems to be too much of 
an extreme conservative, and, if 
confirmed, he would do the country 
harm by alleging the Supreme Court 
to turn back the clock on rights 
for minorities, women, abortion, 
and other areas of equal justice 

for all people 47 41 12 


“All in all, If you had to say, do you think the U.S. Senate should confirm or 
turn down the nomination of Judge Robert Bork to be on the U.S. Supreme Court?" 

CONFIRM OR TURN DOWN JUDGE BORK? 

i 

Confirm 29 

Turn down 57 

Not sure 14 

METHODOLOGY 

This Harris Survey was conducted by telephone within the United States between 
September 17th and 23rd, 1987, among a cross section of 1249 adults nationwide. Figures 
for age, sex, race, and education were weighed where necessary to bring them into line 
with their actual proportion* in the population. 

In a sample of this size, one can say with 95 percent certainty that the results 
have a statistical precision of plus or minus three percentage points of what they would 
be if the entire adult population had been polled. 

This statement conforms to the principles of disclosure of the National Council 
on Public Polls. 


871105 

la-c 


<c> 1987 

Tribune Media Services, Inc. 

64 East Concord St., Orlando, PL 32801 



3550 


Senator Hatch. Well, I would hope that he would, and I’m get¬ 
ting tired of that type of biased, one-sided, I think reprehensible 
polling in this country. 

Ms. LaHaye. Let me comment on that. That kind of polling, that 
kind of reporting has an adverse effect on our membership. We’re 
offended by it, and it just makes us want to support Judge Bork all 
the more. 

For example, the ads have been run repeatedly by People for the 
American Way so filled with distortions that it has actually turned 
our women on the other side because we also have been victims of 
distortion by People for the American Way. 

So that doesn’t affect us at all. It makes us more determined to 
support the Judge because of that kind of advertising. 

Senator Hatch. I’ll just make one other comment. 

The Chairman. Senator, if you could conclude or you can take 
my 5 minutes. 

Senator Hatch. I’ll just conclude in about 30 seconds. Thank you, 
Mr. Chairman, for being so gracious. 

But I’ll just say this to you. When I was a young man I was a 
liberal Democrat, and my concept of liberalism was that you would 
be fair. You’d be decent. You’d be honorable, and that you had 
compassion and you felt deeply about other people and their rights. 

That concept changed as I saw this type of stuff going on. I’m not 
saying that conservatives don’t do things that are wrong, too. They 
do. But we’re talking about a Supreme Court Justice position, and 
we’re talking about one of the top judges in the world who has 
been on the second most important court in this land, who was 
found by the bar association all members to be exceptionally well 
qualified for that position 6 years ago, and who now is going 
through this character assassination for no good reason. 

I think the American people need to know that, and it’s repre¬ 
hensible to have polls like this, it seems to me, passed off as reali¬ 
ty, and you can see the whole scenario. The poll comes off, and one 
Senator or so stands up and says, “Well, I just can’t vote for him,” 
and you see that peel off. 

Then somebody stands up and says, “Well, I got a vote count, 
and it’s accurate, and there’s no way he can make it.” Of course, 
the American people start seeing it. 

Then they have an actor who is known for compassion in his 
films and I think is a compassionate person personally who puts 
out an ad that people think must be true because he did it, and I 
think this type of stuff is all geared to, I think, make a political 
circus out of what really is one of the most important confirmation 
decisions in the history of the country. 

Thank you, Mr. Chairman. I appreciate the time. 

The Chairman. Thank you. Senator, and thank you, Madame 
President. We have more questions for you but I’d just note that 
compassionate actors have been very successful in the past. 

Senator Hatch. Yes, I agree with that. I just like them to be 
truthful. 

The Chairman. That’s right. 

The Senator from South Carolina, and then I will move to the 
Senator from New Hampshire. 

Senator Humphrey. I already had a round. 



3551 


The Chairman. All right. Thank you. 

Senator Thurmond. Ms. LaHaye, we are very pleased to have 
you here. I believe your organization represents a lot of women. 
How many members do you have? 

Ms. LaHaye. Our membership as of yesterday’s count was 
573,785. 

Senator Thurmond. 573,785. 

Ms. LaHaye. And they’re in all 50 States and Puerto Rico. 

Senator Thurmond. All 50 States. Well, you have a very signifi¬ 
cant membership. Now, we have heard statements here at these 
hearings that the women are opposed to Judge Bork and they’re 
afraid of Judge Bork. Is that a fringe group that takes that position 
or is that the thinking of the women generally in the United 
States? 

Ms. LaHaye. Absolutely not. I think I represent the mainstream 
of American women, and we do support Judge Bork. I think prob¬ 
ably some of that stemmed right from this committee when a 
member of your Judiciary Committee said that he heard that 
American women were afraid of the Judge, and we are here to 
speak on the opposition of that. 

Our women are not afraid of him. By his own testimony and his 
own background, we feel that his record would give women all that 
we’re looking for in the Supreme Court decisions, and we were 
here to support Justice Scalia. We were here speaking for him and 
noted that this committee supported him 100 percent. 

Then our question is if Justice Scalia and Judge Bork voted to¬ 
gether 98 percent of the time, why are we in such controversy over 
this appointment? 

Senator Thurmond. So the women of your organization favor 
Judge Bork? 

Ms. LaHaye. Yes, we do, sir. 

Senator Thurmond. Do you feel he will make a fair and reasona¬ 
ble judge and will be fair to women? 

Ms. LaHaye. Yes, we certainly do. 

Senator Thurmond. Do you feel he will be fair to blacks and to 
other groups? 

Ms. LaHaye. Yes, we do. 

Senator Thurmond. I just want to ask you this question. Do you 
feel from your knowledge and your study of Judge Bork’s reputa¬ 
tion and his service on the circuit bench where he’s handed down 
150 decision himself and has participated in over 400 decisions, 
none have been overruled by the Supreme Court, that you feel that 
Judge Bork is in the mainstream and should be confirmed by the 
Senate? 

Ms. LaHaye. We believe he’s in the mainstream and should defi¬ 
nitely be confirmed by the Senate. 

Senator Thurmond. The American Bar Association considers 
several qualifications—integrity, judicial temperament, and profes¬ 
sional competence. Do you feel that he possesses those qualities as 
well as being a courageous man, a conscientious man, and imagina¬ 
tive man, and would be an addition to the Supreme Court? 

Ms. LaHaye. I’m happy to say yes to all those. Absolutely. 

Senator Thurmond. Thank you very much. 



3552 


The Chairman. Madame President, I want to thank you very 
much for coming. You do represent a large group of women, and 
your point of view is important that we hear it. 

Let me ask you only one question if I may. Two other very strong 
and articulate supporters of Judge Bork, both witnesses before this 
committee, Mr. Lloyd Culter, former Democratic advisor to Presi¬ 
dent Carter—I believe officially counsel to President Carter if I’m 
not mistaken—and a distinguished former cabinet member, Carla 
Hills in a previous administration, have both testified here that 
they believe that Judge Bork—Judge Bork did not say this, but 
that they believe that Judge Bork would probably vote to uphold 
Roe v. Wade, to support the pro-abortion decision before the Su¬ 
preme Court. 

What is your view? Do you think Judge Bork would uphold the 
pro-abortion, as it is characterized, in the Supreme Court? 

Ms. LaHaye. Senator Biden, in my testimony, which I believe 
you had not been here- 

The Chairman. I apologize. I was on the floor. I’m sorry. 

Ms. LaHaye. I understand. 

We mentioned that we don’t really know how he would vote on 
some of those issues. We do not know, but we do know that we sup¬ 
port him because of his judicial restraint, and that is so important 
to us and the fairness that we see that he’s exemplified that we’re 
willing to take that chance and just vote for Judge Bork to support 
him. 

The Chairman. You think there is a possibility he could vote for 
Roe v. Wade? 

Ms. LaHaye. I cannot even speculate how he would vote on that. 

The Chairman. Fair enough. I appreciate your testimony. You 
were very nice to come. It’s important that you be here. 

Senator Hatch. Senator Hatch, I have one more question and I 
would like to put something in the record. 

Ms. LaHaye, the largest single category of cases on the Supreme 
Court’s docket happen to be criminal cases. Does your organization 
have any feelings about Judge Bork’s approach to law enforcement 
and whether or not he should be on the Court for that reason? 

Ms. LaHaye. Well, we feel very strongly that we are at the point 
where the criminal is not supposed to be the primary issue. It 
should be those who have been offended, and the recognition 
should be given to support their rights and benefit them, not the 
criminal. 

We feel in judicial restraint that would be represented very defi¬ 
nitely. 

Senator Hatch. Thank you very much. 

Mr. Chairman, could I put something in the record? 

The Chairman. Sure. What are you going to put in? 

Senator Hatch. Well, it’s going to be a response to the statement 
of John Frank the other day, because a few days ago an attorney 
testified on Judge Bork’s judicial record. At that time, Senator 
Simpson noted, with some surprise, that one of Judge Bork's oppo¬ 
nents had finally looked at his entire record on the circuit court, 
and his conclusion against Judge Bork prompted us to take a closer 
look at that actual record and his testimony. 



3553 


In many respects, his analysis was found wanting by us. For in¬ 
stance, this witness, John Frank, referred to a concurrence as a dis¬ 
sent and to a dissent as a concurrence or to Bork’s opinion has 
having been written by another judge, and beyond errors of fact 
such as that, however, are other misleading aspects of the analysis. 

One example of the attorney’s faulty analysis was his assertion 
that the Lebron case where Judge Bork allowed a litigant to ridi¬ 
cule President Reagan in subway ads was the most restrictive, he 
said, the most restrictive speech opinion since 1930, and he went on 
to say that Bork’s conclusion was, quote, “obvious”, unquote. 

Now, two points. Judge Bork’s opinion cannot be both the most 
restrictive of free speech since 1930 and, quote, “obvious”. More¬ 
over, if this case was so obvious, why did the district court rule 
against Lebron as it did. 

So I would ask, Mr. Chairman, that my analysis, Response to the 
Statement of John B. Frank, be placed in the record at this point. 

The Chairman. Without objection. We’ll send a copy of that to 
Mr. Frank and give him an opportunity to respond. 

Senator Hatch. That would be fine. 

[The information of Senator Hatch follows:] 



3554 


Response to the Statenent of John P. Frank 

Introduction 

Witnesses both for and against Robert Bork have agreed 
on one salient issue: as a Judge of the U.S. Court of Appeals 
for the District of Colunbia, he has judged well and wisely, 
compiling an outstanding record. William Coleman stated the 
consensus when he testified that Judge Bork's judicial opinions 
"are good opinions.* Indeed, only a single witness has 
significantly questioned that view. Appearing before the 
Committee on September 23, John P. Frank submitted a prepared 
statement criticizing a select few of Judge Bork's opinions for 
the court. His analysis of the 20 cases discussed (out of Judge 
Bork's 117 majority opinions) is seriously misleading. 

Examination of Judge Bork's judicial record is of 
course essential to this confirmation process. What is not 
appropriate, however, is to distort the record by referring, for 
example, to a concurrence by Judge Wald as a dissent (as in Mr. 
Frank's discussion of Rotherv ). by referring to a dissent from a 
denial of rehearing as a statement of those in concurrence with 
the case's holding (as in Mr. Frank's discussion of Dronenbura ). 
or by referring to words written by Judge Bork as having been 
written by Judge Wright in dissent (as in Mr. Frank's discussion 
of Singleton l. These misstatements may stem simply from a failure 
to read the cases accurately, but they all seem to cut in the 
same direction — against Judge Bork. 

It is even less appropriate to present Judge Bork's 
Crowlev concurrence as standing for the precise opposite of what 
it in fact said, to present Lebron as damaging to free speech, to 
label a pure administrative law case a "discrimination* case (as 
in the discussion of Black Citizens for a Fair Media v- FCC ), to 
state only partially the holdings of Carter and of various other 
cases, or otherwise to describe cases in the misleading fashion 
outlined in the following discussion that tracks the organization 
of Mr. Frank's prepared statement. 



1. Crowlev v. Schultz 


Mr. Frank begins his attack by asserting that "Bork is 
a judicial activist beyond anything Earl Warren ever dreamed of.* 
In support of this proposition he first cites Crowlev v. Shultz . 
704 F.2d 1269 (1983). There, Judge Bork joined with Judges 
Wright and Edwards in holding that a statutory savings clause 
precluded the award of attorneys fees being claimed under the 
Back Pay Act. Mr. Frank does not question this result, but 
writes that Judge Bork then "proceeded to write a separate 
opinion ...declaring that even without the savings clause, the 
employees would not have been entitled to the [fees]. In short, 
he was so anxious to make law on this subject that he proceeded 
to decide a case and write an opinion on a matter which nobody 
had presented to him." 

In fact. Judge Bork wrote separately not to "make law" 
or "decide" an extraneous issue, but - quite the opposite - to 
preserve for future cases an issue it had not been necessary to 
reach. The Judge observed that "[i]n reaching this holding, we 
assume that, absent the Savings Clause, the Back Pay Act applies 
to cases such as this .... [That] issue has not yet been briefed 
and argued." 704 F.2d at 1275, 1276 (emphasis added). 
Demonstrating how careful and restrained a jurist he is. Judge 
Bork took the effort to make clear that "it is impossible 
confidently to say how we would have decided this issue [of the 
Act's applicability] had there been briefing and argument," thus 
specifically noting that the issue Hr. Frank now accuses him of 
deciding had not been resolved. 704 F.2d at 1276. Far from 
"declaring" whether fees could be awarded in the absence of the 
savings clause, Judge Bork simply made plain that that question 
was for another day. It is hard to imagine how his position in 
the case could have been more greatly distorted. 

2. Mclwain v. Haves 

The next two cases cited by Mr. Frank as examples of 
unprecedented judicial activism have both been thoroughly 
discussed in the essay prepared by Richard Stewart, Harvard Law 



3556 


School's noted administrative lav expert. Hr. Frank writes of 
Hcllwain v. Haves . 690 F.2d 1041 (1982): *[u]nder the Bork 
opinion, despite a very clear statute, the general public will 
continue to eat red dye No. 9." The opinion, Mr. Frank 
concludes, "nullifies an important act of Congress" requiring 
various color additives to be withdrawn from the market if not 
proven harmless within a two and a half year period. Professor 
Stewart, however, tells us (as Mr. Frank does not) that the 
relevant statute allows such time beyond the thirty month period 
as the Food and Drug Administration "from time to time* finds 
"necessary to carry out* the testing. Congress specified no 
absolute time limit for the process. Here, the additives had 
continually passed all tests, but the FDA repeatedly insisted 
that before gaining final clearance, they be subjected to the 
even more sophisticated tests made possible by scientific 
advances. Professor Stewart's summary is perhaps more 
enlightening, albeit less flamboyant, than Mr. Frank's: "On 
these facts, Judge Bork found that the successive FDA 
postponements fell squarely within the language of the statutory 
provision authorizing such postponements .... Judge Bork's 
opinion is well reasoned and the result is clearly correct. The 
only alternative would be to ban long-established color additives 
that had passed every safety test to which they had been 
subjected, a result plainly contrary to the statutory scheme." 

The Jersey Central Power & Light Co. v. FERC case, 810 
F.2d 1168 (1987)(en banc), to which Mr. Frank devotes a paragraph 
is fully discussed through six pages of Professor Stewart's 
essay. Suffice it here to say that Hr. Frank is again simply 
wrong when he asserts that Judge Bork's majority opinion "shifts 
all risk of loss to the consumer, a striking case of judicial 
activism* under which *[t]he result is that consumers take it in 
the pocketbook." As Senator Simpson informed Mr. Frank, not one 
dime has been shifted from the consumers. The fin banc opinion 
did require the Federal Energy Regulatory Commission (FERC) "to 



3557 


hold a hearing on Jersey Central's claim that FERC's refusal to 
allow it increased rate revenues would be confiscatory, violating 
its statutory and constitutional rights,' to quote Professor 
Stewart. That hearing has not yet even been held; when it is, 
its results will presumably be subject to court review. The 
opinion of the D.C. Circuit requiring a fair hearing 'is entirely 
consistent with precedent and represents a reasoned and 
reasonable resolution of a difficult case,' Professor Stewart 
concludes. 

Mr. Frank then asserts that Judge Bork's 'nonjudicial 
pronouncements' show that he 'wants to write the Sherman Act out 
of existence.' Ho citations are provided to support this 
remarkable proposition. This calumny has been emphatically 
disproven by any number of antitrust experts, including fifteen 
past Chairmen of the Antitrust Law Section of the American Bar 
Association (who have written to note that 'the mainstream view, 
which no one has helped promote more than Judge Bork, is that the 
proper antitrust policy is one whi.ch encourages strong private 
and government action to promote consumer welfare,' and who note 
that the Judge's classic book on antitrust has been cited by the 
Supreme Court and the Circuit Courts of Appeals in 75 separate 
decisions—one or another of which has been joined by every 
present member of the Supreme Court). 

Mr. Frank discusses only one of Judge Bork's antitrust 
decisions, Rotherv Storage & Van Co. v. Atlas Van Lines . 792 F.2d 
210 (1986). He seeks to discredit the opinion by citing 'Judge 
Wald's dissent.' In fact, however, Judge Wald agreed with Judge 
Bork's holding, writing: 'I concur in the result and in much of 
the reasoning of the panel's opinion.' 792 F.2d at 230 (Judge 
Wald concurring). Indeed, another distinguished 'liberal' Judge 
appointed by President Carter, Judge Ginsburg, joined with Judge 
Bork in the opinion. Their holding affirmed the judgment of the 
District Court that Atlas Van Lines, to protect the use of its 
equipment, facilities, services, and reputation, could legally 
require its agents to transfer their other, independent 
interstate business to separate corporations (thereby eliminating 



3558 


a problem of '■'free riding*). While the requirement advanced 
consumer welfare by preserving the services that the nationwide 
line was able to offer its customers, it posed no threat of 
decreasing output or raising rates, for firms other than Atlas 
controlled fully 94 percent of the relevant market. Thus, Mr. 
Frank's analogy to the original Standard Oil monopoly comes as a 
mystifying non sequitur in this discussion of a firm with less 
than a six percent market share. Confusing, too, is Mr. Frank's 
classification of the holding reached by all four judges involved 
as "judicial activism." Not only did the court look to recent 
congressional action on the subject (citing statutory provisions 
and Senate Committee report language that "this type of 
relationship is not a violation of the antitrust laws and is 
standard agency law"), its result was also dictated by three 
recent Supreme Court opinions: Broadcast Music. Inc, v. Columbia 
Broadcasting System . 441 u.s.l (1979); National Collegiate 
Athletic .Association v. Board of Regents . 468 u.S. 85 (1984)? 
Northern wholesale stationers. Inc, v* Pacific Stationery and 
Printing Co. . 105 S. Ct. 2613 (1985). 

5. Lebron 

Even Hr. Frank's ideosynonatic reading of the cases 
cited above does not prepare one for his astonishing assertion 
that Lebron v. Washington Metropolitan Area Transit Authority . 

749 F.2d 893 (1984), is one of "the most restrictive free speech 
opinions in any court since 1930." There, Judge Bork upheld the 
right of an artist to display in the Washington, D.C. subway 
posters highly critical of President Reagan and depicting the 
President as mocking the poor and downtrodden. The subway had 
banned the depiction as factually deceptive. Mr. Frank dismisses 
Judge Bork's holding, saying, "(p]resumably any court in the land 
would have come to this fairly obvious conclusion." Actually, 

Mr. Frank would not have had to stretch his imagination too far 
to contemplate a court upholding the Transit Authority's ruling, 
for that is precisely what the district court judge who heard the 
case did. While Mr. Frank leads us to believe otherwise. Judge 
Bork's opinion supporting the artist's free speech right 
overturned the lower court's judgment. 



3559 


Mr. Prank's main disagreement with Lebron . however, is 
not that the result was "obvious*, but that Judge Bork's opinion 
assertedly "knock[s) ...in the head* the rule disapproving of 
prior restraints on speech. Again, the characterization is 
absolutely false. While recognizing that the Supreme Court has 
held that not all prior restraints are per se unconstitutional. 
Southeastern Promotions Ltd, v. Conrad . 420 U.S. 546 (1975); 
Members of the City Council of Los Angeles v. Taxpayers for 
Vincent . 104 S.Ct. 2118 (1984), Judge Bork proclaimed that prior 
restraints do bear "a presumption of unconstitutionality.* 749 
F.2d at 896. 

Indeed, Judge Bork went even further. He could have 
based his decision (as Judge Starr would have done, 749 F.2d at 
898) on the reasoning that the poster was not "deceptive" because 
no reasonable person would think it to represent an actual event. 
He went beyond that rationale, however, to hold that "a scheme 
that empowers agencies of a political branch of government to 
impose prior restraint upon a political message because of its 
falsity is unconstitutional." 749 F.2d at 898. Judge Bork noted 
in passing that "in extreme situations prior judicial restraint 
on the basis of falsity may be appropriate," 749 F.2d at 898, and 
gave a specific example of such a possible instance (citing a 
case where a federal court had prohibited an advertiser from 
falsely implying that his ads spoke for and represented the views 
of the Republican Party). Judge Bork's nonpartisan opinion, 
overruling the district court and going beyond the rationale 
favored by Judge Starr, is tremendously protective of First 
Amendment rights, and is far more protective than the Supreme 
Court has been in other contexts involving restraint of political 
speech. See , e.g. . Lehman v. City of Shaker Heights . 418 U.S. 

298 (1974)(upholding a ban on all political advertising in the 
city's subways). It is also more protective against prior 
restraint than is Mr. Frank later in his statement, where he 
attacks Judge Bork's opinion in the Williamson Tobacco case for 



3560 


rejecting an order "requiring prior FTC approval of certain 
advertising as to truth or content." 

6 . Dronenburq 

As his final proof that Judge Bork is a judicial 
activist, Mr. Frank offers Dronenburq v. Zech . 741 F.2d 1388 
(1984). Mr. Frank, unlike other of Judge Bork's opponents, does 
not dispute the result in that case: "[t]he issue there was 
whether the Navy could exclude homosexuals, and the answer is an 
obvious yes." Rather, Mr. Frank attacks Judge Bork for setting 
out his rationale in a "wholly gratuitous discourse" that Mr. 
Frank asserts drew criticism from "concurring judges." While Mr. 
Frank would have us believe that Judge Bork was rebuked by 
colleagues who voted in agreement with Dronenburq's holding, the 
fact is that there were no concurrences. Judge Bork wrote for a 
united panel that included Judge Scalia. The criticism to which 
Mr. Frank refers actually came from four other judges who were on 
the losing side of a full court decision not to rehear the case. 

Just as Mr. Frank neglects to tell the Committee that 
Judge Bork's opinion was left standing by the full court, so does 
he fail to cite Judge Bork's statement in response to the 
dissents from the denial of rehearing. As Judge Bork wrote, his 
panel opinion was necessarily thorough because "[t]he appellant 
cited a series of cases...which he claimed established a privacy 
right to engage in homosexual conduct. It was, therefore, 
essential that the panel examine those decisions to determine 
whether they did enunciate a principle so broad." Dronenburq v. 
Zech . 746 F.2d 1579, 1582 (1964)(denial of rehearing)(statement 
of Judges Bork and Scalia). Nor, of course, does Hr. Frank 
inform his readers of Judge Ruth Bader Ginsburg's comments in 
voting not to reconsider Judge Bork's opinion, $ee 746 F.2d at 
1581 (statement of Judge Ginsburg). Nor does he reveal Judge 
Starr's view. See 746 F.2d at 1584 (statement of Judge 
Starr)("the panel's moving ... to examine more broadly the 
Supreme Court's teachings on the right of privacy ... seems not 
only appropriate but necessary to treat dispassionately and 
fairly the constitutional claims advanced by Mr. Dronenburg"). 



3561 


"Minorities* 

Mr. Frank next proceeds to contend that in opinions 
written by Judge Bork *involving minorities, ... one way or 
another, the minorities regularly and routinely lose.* As proof 
of this broad and serious assertion, Mr. Frank begins not with 
substantive civil rights cases, but with a trilogy of Federal 
Communications Commission administrative law issues. Indeed, he 
n«ver even refers to cases euch as uff ey v r N orttiv ss t Airlines. 
740 F.2d 1071 (19*«) (where Judge Bork wrote or joined * per 
curiae opinion that mm airline stewerdessea nay not be paid 
less than their differently titled mele counterparts) , or Bmorv 
v. Secretary of the Mm . slip ep. 85-5685 (May 19, 

1987)(reinstating a lawsuit alleging civil rights violations 
involving the selection of military officers subject to Senete 
confirmation), or Sumter Co unty v. United States. 555 F.8upp 694 
(D.C. 1983)(where Judge iork eat on the District Court to write 
or join the per curiam opinion holding that the county had failed 
to demonstrate that its new voting system hed neither the purpose 
nor the effect of *abridging the right of black South Carolinians 
to vote*). Nor does Mr. Frank reference or dispute the earlier 
testimony of Mr. born that *Bork has voted for one or more civil 
rights claims in seven out of the nine decisions he hed rendered 
involving substantive interpretations of civil rights laws 
protecting minorities or women.* 

1. nat i ona l Latino Media Cp sl it io n 

Rather than discuss such substantive civil rights 
claims, Mr. Frank turns to National Latino M edia Coalition v. 

£C£, 816 F.2d 785 (1987). As with the other FCC cases that 
follow, Hr. Frank does not directly dispute the holding or the 
rationale of the case; he simply notes that the less appealing 
party won. This case involved an FCC announcement that in the 
event that regular proceedings for awarding broadcast licenses 
ever ended in a tie, a lottery system could be employed. The 
unanimous D.C. Circuit panel found that this announcement was not 
a legislative rule making, but was merely an interpretive 
expression of the agency's understanding of its governing 
statute. Under the Administrative Procedure Act, *notice and 



3562 


comment* requirements do not apply to such interpretive 
statements. Thus, the Act 'disposes of petitioners' contention 
that the statements could not be made without notice and 
comment.* 816 F.2d at 709. This holding, it should be noted, 
gives the lie to Hr. Frank's assertion that the court 'refused to 
decide the case.* It is true that the court, bound by Abbott 
Laboratories , 387 U.S. 136 (1967), and by T q1 1sX.S q .94s Ass'n v. 
Gardner . 387 U.S. 150 (1967), was precluded from reviewing 
certain other issues because the FCC's interpretive, hypothetical 
statement did not bind the Commission or "presently affect the 
rights and obligations of any license applicant or of anyone 
else.* 816 F.2d at 789. That holding, too, is completely 
unexceptionable, and Hr. Frank does not contest it. 

2 . Black Citizens for a Fair Media 

He turns next to Black Citizens for a Fair Media v. 

FCC . 719 F.2d 407 (1983), where again his only objection seems to 
be that the party with the better name had the losing legal 
argument. Mr. Frank's entire discussion of the case reads: 

*Judge Bork also rejected a challenge by a black group that the 
FCC's broadcast renewal application procedures were 
discriminatory.* That sentence misstates the case. No claim of 
discrimination was made. The case, steming from the FCC's 
adoption of simplified license renewal procedures with less 
onerous paperwork, involved two issues of administrative law: one 
administrative law claim was made under the Communications Act, 
while the other was brought under the Administrative Procedure 
Act. Race and discrimination were simply not involved. Judge 
Bork's administrative law ruling seems clear cut? as Professor 
Stewart testified, *Judge Bork's position is amply supported by 
other recent decisions in the D.C. Circuit and the Supreme 
Court.* 

3. ICBC 

The third in Mr. Frank's series of non-civil rights 
*civil rights* cases involving the FCC is ICBC Cor o, v. FCC. 716 



3563 


F.2d 926 (1983). There, Judge Bork wrote for a unanimous panel; 
he was joined by Judge Wald and Judge Scalia. The FCC had 
refused to make an unprecedented exception to a rule 'designed to 
prevent interference among AM radio stations.' 716 F.2d at 926. 
Because AM frequencies carry much farther at night than in the 
day, the FCC found that it could not waive its rules to allow 
night operation of the daytime station WLIB: night broadcast 
would have caused extensive interference with other, previously 
established stations. The court held, reasonably enough, that 
the FCC decision not to waive its rule where interference would 
result was not arbitrary and capricious. Mr. Frank does not 
explain why this holding was wrong. 

4. Carter v. D.C. 

After these FCC cases, Mr. Frank raises Carter v._ 
District of Columbia . 795 F.2d 116 (1986). Both sides in that 
case had appealed to the D.C. Circuit, and the opinion filed 
jointly by Judge Ruth Bader Ginsburg and Judge Dork contained 
directions to the district court that variously benefited each 
side. Mr. Frank is correct in noting that the panel held, 
consistent with the Supreme Court's precedent in Monel1 v. 
Department of Social Services . 436 U.S. 658 (1978), that to 
establish § 1983 municipal liability for the police misconduct 
alleged, it was the plaintiff's burden to show that the 
misconduct resulted from a 'persistent, pervasive practice of 
[D.C.) city officials and Police Chief Turner, which . . . was so 
common and settled as to be considered [a custom or policy).' 

795 F.2d at 125. It is hard to discern how a decision, based on 
the facts presented, that the city government of Washington, D.C. 
and Police Chief Maurice Turner did not have such a policy is 
somehow anti-minority. 

Mr. Frank omits reference to the rest of Judge 
Ginsburg's and Judge Bork's opinion. Contrary to the impression 
left by Mr. Frank's unelaborated statement that the panel 
'approved a directed verdict against the plaintiffs,' the 
plaintiffs retained their cause of action against the police 
officers involved. Denying the arguments of the defendants. 
Judges Bork and Ginsburg held: 



3564 


Plaintiffs are entitled to the judgment 
of a jury on the quality of the 
officers' conduct. And a reasonable 
jury, crediting plaintiffs' account of 
the episode in suit, could well find 
that Officers Markovich and Tarantella, 
in arresting and thereafter filing 
charges against Carter and Parker, acted 
egregiously, intentionally, or 
recklessly to cause plaintiffs severe 
emotional distress. 

795 F.2d at 139. The Judges further held that were the 
plaintiffs to prove the police misconduct at their new trial, the 
District Court (contrary to its initial decision on the matter) 
should have the plaintiffs' arrest records expunged. The Judges' 
compassion for the plaintiffs was clear: 'We discern no cogent 
reason, should plaintiffs prevail at trial, for refusing to 
relieve them of the stigma of responding 'Yes' to the question, 
'Ever arrested?'.* 795 F.2d at 136. A more complete account of 
the case than Mr. Frank provides, therefore, hardly demonstrates 
that Judges Ginsburg and Bork are determined that 'minorities 
regularly and routinely lose.' 

5. qgi tifln. R efugee center 

Mr. Frank attacks, as 'another way to skin the cat,' 
Judge Bork's holding for the court in Haitian Refugee Center v. 
Gracey, 809 F.2d 794 (1987), that the plaintiffs lacked standing 
to sue. He fails to explain why even a devious and biased judge 
would need any subterfuge in this case where, as Judge Edwards (a 
Democratic appointee) pointed out, if plaintiffs were found to 
have standing, they still had 'no support in the cited laws or in 
the Constitution of the United States.' See 809 F.2d at 8208 
(statement of Judge Edwards, concurring in part and dissenting in 
part). 


'Nuclear Safety' 

2. Bellottl 

Mr. Frank then turns to the topic of 'nuclear safety,' 
a goal toward which, we are told, 'Judge Bork is not inclined to 
extend himself much.' In Bellotti v. NRC . 725 F.2d 1380 (1983), 
therefore, Mr. Frank argues, the doctrine of standing provided 



3565 


Judge Bork with a "handy tool" (presumably with which to work for 
increased danger from nuclear annihilation). To other readers, 
the case may seem somewhat less sinister. Bellotti centered on 
whether the Massachusetts Attorney General could intervene to 
change the agenda in a Nuclear Regulatory Commission proceeding. 
The scheduled proceeding was to involve NRC plans to fine and to 
tighten safety regulations on Boston Edison; the Massachusetts 
officeholder sought to interject additional issues. The court 
held that because Mr. Bellotti did not oppose the penalties and 
increased regulations to be addressed by the proceeding, but 
rather sought imposition of other measures, he was not entitled 
to intervene. That result is strongly supported by the analysis 
of the Supreme Court in Vermont Yankee Nuclear Power Corp. v. 

NRDC # 435 U.S. 519 (1978); see also , testimony of Professor 
Stewart. 

2. San Luis Obispo 

Judge Bork's holdings in San Luis Obispo Mothers for 
Peace v. NRC . 789 F-2d 26 (1986)(fin banc ), were joined by Judges 
Mikva, Edwards, Scalia, and Starr. Following Citizens to 
Preserve Overton Park v, Voloe . 401 U.S. 402 (1971), the court 
held that without evidence of bad faith, it was not free to 
demand production of the transcripts of closed administrative 
meetings. The court also held that where the Commission had 
reviewed a plant's design and found it "more than adequate to 
withstand the forces of a Safe Shutdown Earthquake without 
releasing dangerous quantities of radioactivity," where the 
chances of a greater earthquake were rated at zero, and where the 
possibility of an earthquake coupled with an unrelated 
radiological accident was found to be 'one in several tens of 
millions," the Commission was not required to hold the hearing 
sought by the petitioners. 789 F. 2 d at 38, 33, 2. As Professor 
Stewart has noted: "Judge Bork would accord rather more deference 
to the fact findings and policy judgments of the Commission than 
would Chief Judge Wald. In this he has the support of the 



3566 


Supreme Court, which in 
462 U.S. 87 (1983), rejected an analogous challenge to NRC 
determinations.' It had not been suggested prior to Hr. Frank's 
testimony that Judges Mikva and Edwards, for example, somehow 
oppose 'nuclear safety.' 


'Communication and Speech' 

Mr. Frank's next assault follows in a strangely 
truncated section on 'communication and speech.' Again, Judge 
Bork's Oilman concurrence is not even mentioned, although it is 
widely regarded as the most important legal development favorable 
to the press in a decade and as a vivid example of how the Judge 
preserves the constant First Amendment value of freedom of speech 
against ever changing circumstances (in this instance, the 
growing dangers posed by burgeoning libel actions). Two of Judge 
Bork's other important opinions vindicating free speech rights 
(LbbEffln and Williamson Tobacco ) are split off for separate 
analysis (and attack) so that their powerful First Amendment 
discussions are not included in this First Amendment section. 
Rather, Mr. Frank'here seizes upon just three cases, and 
criticizes Judge Bork for giving too much weight to First 
Amendment values in two of them. 

Before excoriating Judge Bork for being overly 
protective of free speech in TRAC v. FCC and Lovedav v. FCC . 

Mr. Frank criticizes him for allowing the restrictions at issue 

in Finzer v. Barrv , 798 F.2d 1450 (1986), cert , granted _ U.S. 

_ (1987). There, Judge Bork reexamined and affirmed the 

continued validity of D.C. Circuit precedent in ruling for 
Washington, D.C. Mayor Marion Barry and against David Finzer, the 
National Chairman of the Young Conservative Alliance of America. 
Mr. Finzer sought to carry signs denigrating the Soviet and 
Nicaraguan governments in violation of a statute making it 
unlawful to 'display any ... placard ... designed ... to ... 
bring into odium any foreign government' within 500 feet of that 
country's embassy. The Finzer majority upheld the statute after 
lengthy analysis. 



3567 


This case demonstrates the tactical advantage owned by 
a judge's opponents, who can find reasons for criticism whichever 
way a case is decided. Had Judge Bork voted for Mr. Finzer, it 
is hard to believe that certain critics of this nomination would 
not have branded that result as "activist* and as motivated by 
sympathy for a conservative loyalist and by antipathy toward the 
communist regimes whose embassies the law protected. Judge Bork 
would have been taken to task for ignoring the international law 
and treaty obligations that he in fact obeyed, and for promoting 
his foreign policy views over those of Congress, the State 
Department, and the officials of Washington, D.C. Instead, the 
Judge looked to centuries old principles of the Law of Nations, 
which he observed were codified, for example, in Article 22 of 
the Vienna Convention (among the signers of which is the United 
States). That treaty lists the obligations of a host state with 
regard to foreign missions, and specifies: "The receiving State 
is under a special duty to take all appropriate steps to protect 
the premises of the mission ... and to prevent any disturbance of 
the peace of the mission or impairment of its dignity." The 
Judge was also obliged to consider uncontradicted State 
Department testimony of the direct relationships between 
treatment of foreign diplomats here and the safety and protection 
accorded our representatives abroad, and to consider Supreme 
Court precedent upholding laws regulating protests in front of 
courthouses, Cox v. Louisiana . 379 U.S. 559 (1965), upholding 
application of a trespass law to demonstrations at jails, 

Adderlev v. Florida . 385 U.S. 39 (1966), and upholding regulation 
of expressive activity near a school, Gravned v. City of 
Rockford . 408 U.S. 104 (1972). 

2 . TRAC v. FCC 

Telecommunications Research and Action Center (TRAC) v. 
FCC . 801 F.2d 501 (1986), reflects Judge Bork's commitment to 
protecting First Amendment values, and Mr. Frank is right to call 
attention to the case (although he does so only for the purpose 
of criticizing Judge Bork for seeming to believe that broadcast 
media should receive full First Amendment coverage). TRAC 



3568 


involved an FCC decision not to apply three forms of broadcast 
content regulation to the new technology of teletext. The FCC 
found that; ( 1 ) television stations could fulfill the requirement 
of affording candidates reasonable access to broadcasts by 
allowing access to regular broadcast operations not including 
teletext; (2) that statutory 'equal opportunity' requirements do 
not apply to teletext; and (3) that it had no obligation to 
extend its own regulatory policies (apart from statutory 
regulations) to new technologies, where to do so would hamper the 
development of those technologies and would not be in the public 
interest. Judges Bork and Scalia agreed with findings (1) and 
(3), but reversed the FCC with regard to finding (2) because the 
statute involved does apply to teletext as a 'broadcast' and has 
been found constitutional by the Supreme Court. As Professor 
Stewart has testified: 'Judge Berk's opinion is thorough, well- 
reasoned, and persuasive .... Judge Bork's analysis is also a 
powerful and indeed devastating demonstration of bankruptcy in a 
(Supreme Court] distinction [between print and broadcast media] 
which he must nonetheless follow and does so conscientiously.' 

Judge Bork's intellectual honesty is such that he 
refused to accept the FCC's proferred distinction of teletext 
from 'traditional broadcast services,' even though adopting that 
distinction would have allowed teletext to remain totally exempt 
from regulatory statutes that many find constitutionally 
problematic. As Judge Bork wrote: 'The dispositive fact is that 
teletext is transmitted over broadcast frequencies that the 
Supreme Court has ruled scarce and (therefore] ... content 
regulable.' 801 F.2d at 508. Equally significant, however, is 
the insight Judge Bork's discussion provides into his First 
Amendment views as he joins other respected scholars to decry 
the 'scarcity' rationale (used to permit content regulation of 
broadcasts which restrictions would be unconstitutional if 
applied to the print media). See Bazelon, FCC Regulation of the 
Telecommunications Press . 175 Duke L.J. 213; Miami Herald 
Publishing Co. v. Tornillo . 418 U.S. 241 (1974). 



3569 


3. Lovedav 

Judge Bork's ardent commitment to protecting First 
Amendment values is further evidenced by Lovedav v. FCC . 707 F.2d 
1443 (1983). Judge Bork was joined in that unanimous opinion by 
Judge MacKinnon and Judge Ruth Bader Ginsburg. There, in keeping 
with statutory requirements, radio stations had identified the 
sponsor of a political advertisement (in this instance, a 
political action committee called Californians Against Regulatory 
Excess). The FCC rejected claims that the stations were required 
to go beyond the statute to launch in-depth investigatien* Into 
the background of the sponsoring group, reasoning that 'a 
licensee confronted with undocumented allegations and an 
u n d oc umented rebuttal may safely accept the apparent spomsor's 
representations that he is the real party in interest.• The 
court upheld the FCC's interpretation. 

Mhile Lovedav is a straightforward statutory 

interpretation case, Jud ge Pork's opinion is worth quoting at 

some length to show his sensitivity to First Anandn snt concerns — 

a sensitivity thet is the basis for Hr. Frank's attack on this 

opinion. The Judge wrote: 

Here we to approve a stringent obligation to 
investigate ... the moot likely result would 
b« that many stations, in lieu of incurring 
the expense of the investigation end the risk 
that the commission would later assess their 
duties differently, would try, possibly by 
imposing b ur den some disclosure require m e n ts 
on advertisers, to avoid carrying advertise¬ 
ments of the type involved hers. If so, 
opponents of groups sponsoring political 
messages would have a ready moans of 
harassing and perhaps silencing their 
adversaries by making charges, h owe ver 
baseless, that the true sponsor of a 
political advertisement was someone other 
then the named sponsor. The rule petitioners 
seek might, therefore, have the effect of 
choking off many political messages. Quite 
aside from any First Ameiwfeeent difficulties 
that such a rule might implicate, we are 
certainly not prepared to say that the public 
would be benefited from a decline in the 
number and variety of political messages it 
receives. Even more certainly, any such 
decision concerning the public benefits of 
such a rule should come from Congress and not 
this court .... [and] [W]here the law's 
attempt to discover the true utterers of 
political messages becomes so intrusive and 
burdensome that it threatens to silence or 
make ineffective the speech in question, the 
law presses into areas which the guarantee of 
free speech makes at least problematic. 



3570 


707 F.2d at 1458-1459. Mr. Frank's dispute with such values is a 
quarrel with our fundamental law, not an argument against Judge 
Bork's fitness for the Court* 

''Miscellaneous* 

1. American Cvanamid 

The concluding section of Mr. Frank's statement treats 
three "miscellaneous* cases brought together to show that Judge 
Bork *is a paradox.* This charge is vaguely explained as meaning 
that the Judge does not let his personal policy views control his 
reading of the law, a trait seemingly more admirable than 
paradoxical. The first of the cited cases is Oil. Chemical and 
Atomic w orkers International Union v. American Cvanamid Co. . 741 
F.2d 444 (1984), a case that has be«n discussed more than 
thoroughly during the course of the hearings* A unanimous panel 
upheld an Occupational Safety and Health Review Commission ruling 
that a company policy requiring sterilization for women who 
continued to work in a plant where lead levels posed great 
dangers for fetuses did not violate the terms of the Occupational 
Safety and Health Act. Under company policy, female employees 
were not automatically discharged, but were presented with what 
Judge Bork called a *most unhappy choice.* 

Mr. Frank's description of the case is appalling. He 
writes: *Bork had no trouble with holding that the way to make 
the plant safe was to deprive women of their childbearing 
capacity.* He thus falsely attributes the company's policy to 
Judge Bork personally and, worse, implies that the policy was one 
with which Judge Bork had *no trouble.* Judge Bork, of course, 
played no part at all in deciding any *way to make the plant 
safe*? rather, he and his fellow judges held that the company 
policy, once made, did not violate the proscriptions of the 
congressional enactment at issue. They did note further that the 
policy *may be an 'unfair labor practice' under the National 
Labor Relations Act or a forbidden sex discrimination under Title 
VII of the Civil Rights Act of 1964** 741 F.2d at 450 n*l. In 

no way did they personally endorse the policy. As Professor 



3571 


Stewart observes, "Judge Boric's well-crafted opinion acknowledges 
the painful and far-reaching implications of the case but 
provides good reasons for insisting on the limited authority of 
judicial office." 

2 . Brown and Williamson Tobacco 

In his discussion of the next case that he selects, FTC 
v. Brown and Williamson Tobacco Coro. . 778 F.2d 35 (1985), Hr. 
Frank shows that it may be he who "is a paradox." Having 
acknowledged in his discussion of Lebron that prior restraints on 
speech are not favored in the law, Mr. Frank reverses ground here 
in attacking Judge Bork (along with Judges Edwards and Scalia) 
for limiting a prior restraint that would have precluded a 
tobacco company even from running certain advertising that was 
neither false nor deceptive. Judge Bork did hold that false and 
deceptive advertising claims may constitutionally be prohibited, 
but modified the district court's restraints so as to accord with 
the rule that 'any restrictions imposed on deceptive commercial 
speech can be no 'broader than reasonably necessary to prevent 
the deception'.' 778 F.2d at 43 (citation omitted). This case 
demonstrates the care and effort Judge Bork takes to ensure that 
all constitutionally protected speech in fact receives 
protection. Rather than herald Judge Bork for proclaiming, as he 
does, that "(bjoth consumers and society have a strong interest 
'in the free flow of commercial information'," 778 F.2d at 43, 
quoting Virginia State Board of Pharmacy v. Virginia Ci tizens 
consumer Council . 425 U.S. 748, 763 (1976), Mr. Frank denigrates 
the panel for being insufficiently restrictive. Again, the 
Constitution and Supreme Court precedent are on Judge Bork's 
side, regardless of Mr. Frank's personal preferences. 

3. sin glet o .a 

The last of Mr. Frank's "miscellaneous" cases is United 
States v. Singleton . 759 F.2d 176 (1985), rehearing en banc 
denied 763 F.2d 1432 (1985). This is a procedural case holding 
that an earlier ruling of a different D.C. Circuit panel was 


88-374 0 - 89-28 



3572 


indeed binding upon a lower, district court. Singleton arose 
from the armed robbery of a fast food store, after which violent 
crime Mr. Singleton was identified by eyewitnesses as the gun 
wielder, Mr. Singleton then skipped bail and remained a fugitive 
for five and one-half years until he was arrested on an unrelated 
arson charge. After he was found guilty on the robbery counts, 
the trial judge reversed the jury's finding on the grounds that 
the eyewitness testimony was not reliable. That ruling was 
appealed, and the matter went to the D.C. Circuit. A panel of 
that higher court held f* Sinaleton I 'M that the identifications 
were reliable, and reversed the district court's judgment. The 
district court judge thereupon refused to admit the 
identification testimony at Singleton's retrial — on the grounds 
that the evidence was not reliable. 

That ruling was appealed, and it was in this setting 
that the case then came to Judge Bork sitting on another panel of 
the D.C. Circuit. Judge Bork, with Judge Scalia, vindicated the 
Circuit's earlier ruling as *the law of the case*? the district 
court could not substitute its opinion for that of the court of 
appeals. As Judge Bork explained in his statement agreeing with 
the full court's decision to let stand his holding: "The issue 
in Singleton I was reliability and the issue subsequently before 
the district court was reliability [WJe therefore applied 

an ancient and self-evident maxim: 'Things which are equal to 
the same thing are also equal to one another'.* 763 F.2d at 
1434. In other words, as Judge Bork wrote, "the governing 



3573 


principle in this case was first formulated by a geometer.* 763 
F.2d at 1432 at 1433 (statement of Judge Bork). 

Mr. Frank's sole analysis of this case is to attribute 
that quotation, incorrectly, to Judge Wright in dissenting from 
the full court's decision not to reconsider Judge Bork's holding. 

In his conclusion. Hr. Frank mentions just one of Judge 
Bork's labor law cases. Restaurant Coro, of America v. NLRB , B01 
F.2d 1390 (1986), which he does not really critique. He does not 
mention other of Judge Bork's significant labor law opinions, 
such as United Mine Workers of America v. MSHA . Ho. 86-1239 (July 
10, 1987) (agency may not exempt individual mining companies from 
a mandatory safety standard), or Amalgamated Transit Union v. 
Brock . 809 F.2d 909 (1987)(reversing a Department of Labor 
certification that proper arrangements to protect collective 
bargaining rights had been made). 



3574 


The Chairman. Senator Thurmond. 

Senator Thurmond. Ms. LaHaye, I just wanted to congratulate 
your organization and the members of your organization for your 
interest in public affairs, for your interest in the welfare of Amer¬ 
ica and the high principles that you enunciate and for which you 
stand, your patriotism and love of country which this organization 
has shown. I feel this is very important, and if there is anyone 
group in this country that ought to be listened to, it seems to me, 
it’s your group instead of some other fringe group. 

Ms. LaHaye. Thank you, sir. 

The Chairman. Thank you very much, Madame President. 

Senator Specter. 

Senator Specter. My question goes to the subject of equal protec¬ 
tion of the laws and Judge Bork s position in his writings that the 
equal protection clause traditionally applies on racial situations 
under the intent of the framers of the 14th amendment, and more 
recently Judge Bork has expanded that statement to include eth¬ 
nics. 

During the course of his testimony in the hearings for the first 
time he said that he would accept the settled interpretation of the 
equal protection clause to apply more broadly to indigents, to illegi¬ 
timates, to women, and then there was an extended discussion as 
to the standard that would be applied, and Judge Bork said he 
would accept Justice Steven’s standard of reasonableness in terms 
of the appropriate line of scrutiny. 

My first question to you is are you concerned that the equal pro¬ 
tection clause be extended to women? Do you think that it is im¬ 
portant for a vindication of women’s rights that women should be 
included within the coverage of the equal protection clause? 

Ms. LaHaye. We believe the equal protection clause should in¬ 
clude everyone, and we are comfortable with the testimony that 
Judge Bork gave. We have no reason to doubt him. We accept it as 
he testified. 

Senator Specter. The concern that I have is that, in the applica¬ 
tion, there may be some conscience reluctance to apply it as fully 
as others who have adhered to the interpretation of the equal pro¬ 
tection clause. 

The Court has applied equal protection for 101 years beyond the 
range of racial situations going back to the famous case where the 
Chinese alien applied for a laundry licence in San Francisco, and 
the Supreme Court said in 1886 that equal protection applied. 

So that the concern has arisen as to whether Judge Bork’s cover¬ 
age would be as full as it might be had he accepted the traditional 
interpretation at an earlier date, but the essence of your position is 
that you feel fully comfortable with what Judge Bork has said. 

Ms. LaHaye. We are comfortable. We accept it, yes. 

Senator Specter. And you do think that it is important that the 
equal protection clause be applied to women? 

Ms. LaHaye. Yes. 

Senator Specter. Thank you very much. 

Thank you, Mr. Chairman. 

The Chairman. Thank you, Madame President. 

Our next witness will be Vilma S. Martinez, a partner in a Los 
Angeles law firm. She served for nearly 10 years as president and 



3575 


general counsel of the Mexican American Legal Defense and Edu¬ 
cational f\ind, and in 1982, she became a partner in the Los Ange¬ 
les law firm of Munger, Tolies and Olson. She has served as a 
member of the board of regents at the University of California, in¬ 
cluding a 2-year term as chairperson from 1984 to 1986. 

I would like very much to welcome her today. Ms. Martinez, 
thank you for coming. Would you stand to be sworn? 

Ms. Martinez. Thank you. 

The Chairman. Do you swear the testimony you are about to 
give will be the whole truth and nothing but the truth so help you 
God? 

Ms. Martinez. I do. 

The Chairman. Thank you very much for taking the time and 
traveling the distance. It’s a long way, I know. 

Ms. Martinez. Especially changing planes in St. Louis last night. 

The Chairman. Believe me back in the days, weeks ago, when I 
was traveling thousands of miles a week, there’s one consolation to 
my newfound status as only chair of the committee and that is I do 
not have to go through St. Louis or Chicago for awhile. 

Ms. Martinez. I can understand that. 

The Chairman. I love both the cities but not their airports. 

Please proceed. 



TESTIMONY OF VILMA S. MARTINEZ 

Ms. Martinez. Mr. Chairman, it is I who want to thank you and 
members of this committee for inviting me to testify on the nomi¬ 
nation of Judge Robert Bork as a Justice of the U.S. Supreme 
Court. 

For the reasons which I address in my written and oral presenta¬ 
tion, I urge this committee not to recommend the nomination of 
Judge Bork to the full Senate. 

When Supreme Court Justice O’Connor was before this commit¬ 
tee during her confirmation hearings she said, and I quote, “As the 
first woman to be nominated as a Supreme Court Justice, I am par¬ 
ticularly honored and I happily share the honor with millions of 
American women of yesterday and of today whose abilities and 
whose conduct have given me this opportunity for service. As a citi¬ 
zen and as a lawyer and as a judge, I have from afar always re¬ 
garded the Court with the reverence and the respect to which it is 
so clearly entitled because of the function it serves. It is the institu¬ 
tion which is charged with the final responsibility of insuring that 
basic constitutional doctrines will always be honored and enforced. 
It is the body to which all Americans look for the ultimate protec¬ 
tion of their rights. It is to the U.S. Supreme Court that we all 
turn when we seek that which we want most from our government: 
equal justice under the law.” 

Few people in recent years have better described the role of the 
Supreme Court in our system of government. Most importantly, 
the Supreme Court deals with the fundamental issues of how 
Americans choose to live together as a nation. Our Constitution 
and our laws help to define who shall go to school, who shall vote, 
who shall work and who shall represent us in public office. 

The deliberations and decisions of this ultimate tribunal must re¬ 
flect not only that ours is a government of laws but that we are a 
nation of people. Supreme Court decisions have had particular im¬ 
portance life and death importance for American citizens of Mexi¬ 
can origin. 

In 1947, a 19-year-old Mexican American youth was convicted of 
murder in Hudspeth County, Texas, even though he was blind, 
mentally retarded and retaliating for an attack on his aging father. 
Despite these circumstances, an all-white jury found the youth 
guilty of first degree murder and sentenced him to death. 

On appeal, the youth’s attorney argued that he had not been 
tried by a jury of his peers, pointing out that although Hudspeth 
County was 50 percent Mexican American, no Mexican American 
had ever served on a jury. He cited a Supreme Court ruling that 
outlawed exclusion of blacks from juries. 

The appeals court held that the 14th amendment did not protect 
Mexican Americans in the same way and the youth was executed 
later that year. 

During World War II, Mexican Americans were drafted into the 
armed forces in large numbers, became the country’s most decorat¬ 
ed ethnic group during the war. Mexican Americans who were 
hailed as Yankee liberators in Paris returned home to find employ¬ 
ment notices which still read “Help Wanted, Anglo, No Mexicans.” 



3577 


Separate bathrooms bore the label “Hombres Aqui,” (men here). 
Restaurant sign posts announced “No Mexicans Served.” The re¬ 
fusal of a Texas white establishment to bury Felix Longoria, a 
Mexican American war hero, in a military cemetery at Three 
Rivers, Texas, served as the catalyst for Dr. Hector Garcia’s forma¬ 
tion of the American G.I. Forum in 1948. 

This post-war period also witnessed the first effective use of the 
Court as a means of gaining equality. 

The Chairman. If I can interrupt, more people should know that 
Dr. Garcia is one of the true civil libertarians and civil rights lead¬ 
ers in this country on a par with people like Dr. King, and is still, 
as you know, making his weight felt in many ways. I hope more 
Americans will come to understand and know that as Mexican 
Americans take their rightful place in the leadership of this coun¬ 
try. He is quite a man. I just want to make that point. 

Ms. Martinez. I deeply appreciate that and I know Dr. Garcia 
will, too. 

The postwar period also witnessed the first effective use of the 
courts as a means of gaining equality for Mexican Americans. The 
crucial case was Hernandez v. Texas, a case argued before the Su¬ 
preme Court by San Antonio attorneys Carlos Cadena and Gus 
Garcia. 

Pete Hernandez, the defendant, had been tried, convicted for 
murder in Jackson County, an area 14 percent Mexican American. 
His jury panel had not included one Hispanic person. In fact, no 
Spanish-surname person had served on any jury of any sort in 
Jackson County during the previous 25 years. 

Hernandez was the first Mexican American discrimination case 
to reach the nation’s high court, and it was a victory. Chief Justice 
Warren held for a unanimous Supreme Court that the State court 
had erred in limiting the scope of the equal protection clause to the 
white and Negro classes and that persons of Mexican descent were 
a distinct class entitled to the protection of the 14th amendment. 

The legal implications of Hernandez curiously decided the same 
month as Brown v. Board of Education were profound. During my 
lifetime I have witnessed the mighty changes wrought by Brown , 
Hernandez and their progeny. I have been privileged to work on 
such cases as Plyler v. Doe, Griggs v. Duke Power Company, Philips 
v. Martin Marietta, and I have been able to live and practice law in 
a time when the right of women to equal protection has been recog¬ 
nized and enforced. 

Judge Bork, in his public statements and his writings, show us a 
man who has a keen intellect and a knowledge of legal precedent 
and who attacks complex legal problems as the grand master at¬ 
tacks a chess board. He does not show us a man, much less a 
lawyer or a judge who understands that equal protection and due 
process are not arcane legal principles which occasionally affect a 
few individuals. They are the soul of our nation. 

Through his writings, speeches and testimony before this com¬ 
mittee, Judge Bork has demonstrated his disagreement with some 
of the most crucial equal protection decisions of our lifetime, an¬ 
nounced his adoption of a reasonable basis test which would pro¬ 
vide less equal protection to racial minorities and women than they 
currently enjoy and announced his opposition to constitutional pro- 



3578 


tection for racial minorities and women from discrimination by the 
federal government. 

Because of this, Judge Bork does not deserve to be confirmed as 
an Associate Justice of the Supreme Court. Judge Bork disagrees 
with Supreme Court decisions finding judicial enforcement of ra¬ 
cially restrictive covenants to be unconstitutional, striking down 
the poll tax laws, establishing the one-person, one-vote principle, 
upholding Congress’ bans of literacy tests for voting and upholding 
recent gender conscious affirmative action. 

With regard to all of these landmark decisions, Judge Bork reit¬ 
erated his disagreement with these decisions in his confirmation 
testimony before this committee. This is described in more detail in 
my written presentation, but I want to focus on his views concern¬ 
ing Harper v. Virginia State Board of Elections, the poll tax case 
and Oregon v. Mitchell, the literacy ban case. 

First the poll tax case. Poll tax laws were a common means of 
disenfranchising minority and poor voters, and I think it is impor¬ 
tant to know the manner in which the poll tax law worked in Vir¬ 
ginia. Voters were required to pay a tax of $1.50 6 months before 
the election in which they wished to vote. Voters received no notice 
that the tax was due unless they owned sufficient property to be 
subject to the personal property tax, in which case the poll tax was 
included in the property tax assessment. 

Registered voters who failed to pay the tax were removed from 
the rolls. New registrants were required to pay a retrospective poll 
tax for previous years in which they had not paid the tax. 

In Harper, the Supreme Court held this Virginia law unconstitu¬ 
tional under the equal protection clause of the 14th amendment on 
the ground that the poll tax law denied the fundamental right to 
vote to those unable to pay a fee to vote. 

Judge Bork has dismissed this poll tax as a very small poll tax 
which was not discriminatory and he has characterized Harper as 
wrongly decided. Judge Bork unfortunately overlooks the fact that 
the genesis of the turn of the century enactment of poll tax laws 
throughout the South was no secret. In fact, in the same year that 
the Supreme Court in Harper recognized the racial purpose of the 
Virginia poll tax law, similar findings were made by lower federal 
courts regarding poll tax laws in Texas and in Alabama. 

Further, race considerations aside, Judge Bork blindly overlooks 
the fact that financial and property restrictions on the fundamen¬ 
tal right to vote are inconsistent with equal protection. 

The Chairman. Ms. Martinez, I am going to have to ask you to 
sum up pretty soon. Take just another couple minutes, but if you 
could. 

Ms. Martinez. $1.50 might not mean much to those of us privi¬ 
leged to be here today but it means a lot for poor Americans. 

In the Oregon v. Mitchell case, which struck down literacy tests, 
Judge Bork has criticized that decision as very bad, indeed, perni¬ 
cious constitutional law while at the same time admitting on Sep¬ 
tember 17th of this year to this committee “I have in matter of fact 
no view of literacy tests. I have never looked at how they operate.” 

Those of us who have looked at how they operate have quickly 
learned that those were used to disenfranchise the poor, the unpop¬ 
ular, and minorities—Americans all. 



3579 


In conclusion, I’d want to say this. Millions of Americans who 
are not legal scholars care deeply about the task before you. They 
care not because of concern about Judge Bork’s intellect or his 
knowledge of legal precedent. They care because the Supreme 
Court affects their lives, our lives as much as any other institution 
on this earth. 

Many poor Americans, black Americans, women, Hispanics have 
gained a foothold on the ladder of opportunity and equality only by 
attacking very small poll taxes, securing reapportionment based on 
one person, one vote, striking down literacy tests, and all Ameri¬ 
cans have benefited as a result. 

We can share more equally the burdens as well as the joys of 
citizenship. We do not need on the Supreme Court a Justice who 
relishes this appointment as an “intellectual feast." We want, we 
need and I hope you give us a judge to whom we can turn with 
confidence as Justice O'Connor so aptly phrased it, “When we seek 
that which we want most from our government: equal justice under 
the law.” 

Thank you, gentlemen. 

Senator Kennedy. Thank you very much, Ms. Martinez, for an 
excellent presentation. I’m always impressed by those who come 
before our committee that are not just students of the law or even 
academicians, although there is a powerful voice for their involve¬ 
ment because they are teaching our young people, but I’m particu¬ 
larly impressed by those that have had a real lifetime of activity in 
these areas of which they speak. 

Anyone that knows of your work as I do from personal associa¬ 
tion and conduct, the work that you’ve done with the NAACP 
years ago, as the general counsel/president of MALDEF, knows of 
your involvement and activity in these areas. 

You bring, I think, a perspective which is of great value. This 
isn’t an academic exercise for you. 

Ms. Martinez. Not at all. 

Senator Kennedy. This is something which you’ve gone through 
with, I’m sure, enormous amount of toil and an incredible amount 
of dedication, and I want to express my own appreciation for your 
presence here. 

Ms. Martinez. Thank you, Senator. 

[The statement of Ms. Martinez follows:] 



3580 


Statement of Vllma S. Martinez 
on the Nomination of Judge Robert H. Bork 
To Be an Associate Justice of the 
Supreme Court of the United States 


Senate Committee on the Judiciary 
September 30, 1987 



3581 


TABLE OF COSTRUTS 

Page 

Introduction. 2 

Equal Protection. 7 

1. Judge Bork Disagrees With and May Seek to Overrule 
Some of the Most Important Equal Protection Decisions 

of Our Lifetime. 8 

a. Enforcement of Racially Restrictive Covenants ... 9 

b. Poll Tax Laws. 12 

c. The "One-Person One-Vote" Principle . 16 

d. Congress' Ban on Literacy Tests . ..... 20 

2. Judge Bork Mould Permit Any Discrimination Under the 
Equal Protection Clause So Long as There Is Some 
Reasonable Basis for the Discrimination, a Standard 
Which Would Provide Less Protection to Racial 

Minorities and Women Than Is Currently Guaranteed ... 25 

3. Judge Bork’s Disagreement With B olling v- Sharpe Could 

Lead to Little or No Constitutional Protection From 
Discrimination by the Federal Government Against Racial 
Minorities and Women. 30 

Conclusion. 33 











3582 


STATEH E HT OP VILMA 3. MARTINEZ 

My name Is Vllma S. Martinez, member of the bars of the 
State of New York and the State of California and of the Supreme 
Court of the United States. 

1 graduated from Columbia Law School In 1967, and started 
working that year as a Staff Attorney with the NAACP Legal 
Defense and Educational Fund, In 1970, I became Equal Employment 
Opportunity Counsel for the New York State Division of Human 
Rights; and in 1971, I Joined the New York law firm of Cahill 
Gordon & Reindel as an associate. In 1973, I was elected 
President and General Counsel of the Mexican American Legal 
Defense and Educational Fund ("MALDEF"), and I served In that 
role until 1982, when I joined the Los Angeles law firm of Hunger 
Tolies & Olson as a litigation partner, where I remain today. 

In my career as an attorney I have represented plaintiffs, 
both individuals and classes, in civil rights litigation; and I 
have represented corporate clients in commercial litigation in 
New York and California. Between 1982 and 1984, I served as a 
member of the Board of Trustees of the Los Angeles County Bar 
Association. In 1976, I was appointed to the Board of Regents of 
the University of California, and between 1984 and 1986, I served 
as Chairman of that Board. 

Mr. Chairman and Members of the Committee, I am honored that 
you have invited me to testify on the nomination of Judge Robert 
H. Bork as a Justice of the United States Supreme Court. For the 


1 




3583 


reasons which I address below I urge this Committee not to 
recommend the nomination of Judge Bork to the full Senate. 

In this Statement, I primarily address the fundamental 
rights guaranteed by the Fourteenth Amendment’s equal protection 
clause. This discussion is prefaced by several Introductory 
remarks. 

IMTROD OCTIO M 

When Supreme Court Justice O’Connor was before this 
Committee during her confirmation hearings, she stated: 

As the first woman to be nominated as a 
Supreme Court Justice, I am particularly honored, 
and I happily share the honor with millions of 
American women of yesterday and of today whose 
abilities and whose conduct have given me this 
opportunity for service. As a citizen and as a 
lawyer and as a Judge, I have from afar always 
regarded the Court with the reverence and with the 
respect to which It is so clearly entitled because 
of the function it serves. It is the institution 
which is charged with the final responsibility of 
insuring that basic constitutional doctrines will 
always be honored and enforced. It is the body to 
which all Americans look for the ultimate 
protection of their rights. It is to the U.S. 

Sujorem e Court th a t we all turn when we s eek tha t 


2 




3584 


wh ich we want most from our government: equal 
justice under the law. 

Hearings Before the Senate Comm, on the Judiciary on the 
Nomination of Sandra Day 0*Connor of Arizona to Serve as an 
Associate Justice of the United States Supreme Court , 97th Cong., 
1st Sess. 57 (1981) (emphasis added). 

Pew people in recent years have better described the role of 
the Supreme Court in our system of government. It Is, at the 
same time, the highest level of appeal In our legal system, the 
forum for certain disputes between sovereign states of the United 
States, and the ultimate check and balance In maintaining and 
nurturing our constitutional system of government. 

Host Importantly, the Supreme Court deals with the 
fundamental Issues of how Americans choose to live together as a 
nation. Our Constitution and our laws help to define who shall 
go to school, who shall vote, who shall work, and who shall 
represent us In public office. The deliberations and decisions 
of this ultimate tribunal must reflect not only that ours Is a 
government of laws but that we are a nation of PEOPLE. 

Supreme Court decisions have had particular importance — 
life and death Importance — for American citizens of Mexican 
origin.1 In 1946, historian Pauline KIbbe wrote that Mexican 
American farmworkers were “but a species of farm implement that 


1. This brief discussion of Mexican American legal history is 
from the report of the Mexican American Legal Defense and 
Educational Fund ("MALDEF"), entitled Diez Anos , describing 
the first ten years' work of that organization. 


3 





3585 


comes mysteriously Into being coincident with the maturing of the 
cotton, that requires no upkeep or special consideration during 
the period of its usefulness, needs no protection from the 
elements, and when the crop has been harvested, vanishes into the 
limbo of forgotten things — until the next harvest season rolls 
around.” In 1947, a 19-year-old Mexican American youth was 
convicted of murder in Hudspeth County, Texas, even though he was 
blind, mentally retarded, and retaliating for an attack on his 
aging father, and was physically unable to have the legally 
necessary intent to justify a finding of first-degree murder. 
Despite these circumstances, an all-white Jury found the youth 
guilty of first-degree murder and sentenced him to death. On 
appeal, the youth 1 s attorney argued that he had not been tried by 
a Jury of his peers, pointing out that though Hudspeth County was 
50% Mexican American, no Mexican American had ever served on a 
Jury. He cited a Supreme Court ruling that outlawed exclusion of 
blacks from Juries. The appeals court held that the Fourteenth 
Amendment did not protect Mexican Americans in the same way, and 
the youth was executed later that year. 

During World War II, Mexican Americans were drafted into the 
Armed Forces in large numbers and became the country 1 ® most 
decorated ethnic group during the War. Mexican Americans, who 
were hailed as Yankee liberators In Paris, returned home to find 
employment notices which still read, "Help Wanted, Anglo. No 
Mexicans." Separate bathroom® bore the label "Hombres Aqul." 
Restaurant signposts announced "No Mexican® served." The refusal 


4 



3586 


of the Texas white establishment to bury Felix Longoria, a 
Mexican American war hero. In a military cemetery at Three 
Rivers, Texas, served as a catalyst for Dr. Hector Garcia's 
formation of the American G.I. Forum In 1948. 

The post-war period also witnessed the first effective use 
of the courts as a means of gaining equality for Mexican 
Americans. In the late 1940s, Carlos Cadena, a Mexican American 
attorney In San Antonio, Texas, won a lawsuit which stopped the 
use of the restrictive covenants that had prevented land In Anglo 
neighborhoods from being sold to Mexicans or blacks. The crucial 
case, however, was Hern a nde z v. Texas , 347 U.S. 473 (1954), a 
case argued before the Supreme Court by attorneys Cadena and Gus 
Garcia. Pete Hernandez, the defendant, had been tried and 
convicted for murder In Jackson County, an area which was 14* 
Mexican American. His jury panel had not included one Hispanic 
person. In fact, no Spanlsh-9urnamed person had served on any 
jury of any sort In Jackson County during the previous 25 years. 
Hernandez was the first Mexican American discrimination case to 
reach the nation's high court, and It was a victory. Chief 
Justice Warren held for a unanimous Supreme Court that the state 
court had erred In limiting the scope of the equal protection 
clause to the white and Hegro classes; and that persons of 
Mexican descent were a distinct class entitled to the protection 
of the Fourteenth Amendment. The legal Implications of the 
Herna ndez decision, decided the same month as Brown v. Board of 
Education of Topeka . 347 U.S. 483 (1954), were profound. 

5 



3587 


During my lifetime, I have witnessed the mighty changes 
wrought by Brown , Hernandez, and their progeny. I have been 
prlvlllged to work on such cases as Plyler v. Doe , 457 IKS. 202 
(1982), Griggs v. Duke Power Co. , 401 U.S. 424 (1971), and 
Phillips v. Martin Marietta Corp. , 400 U.S. 542 (1971). And I 
have been able to live and practice law in a time when the right 
of women to equal protection has been recognized and enforced. 

Judge Bork, in his public statements and his writings, shows 
us a man who has a keen intellect and a knowledge of legal 
precedent, and who attacks complex legal problems as a grand 
master attacks a chess board. He does not show us a man, much 
less a lawyer or a judge, who understands that equal protection 
and due process are not arcane legal principles which 
occasionally affect a few Individuals. They are the soul of our 
nation. Millions of Americans attend school, obtain jobs, serve 
in public office, and vote in state and federal elections because 
of our constant dedication to these principles. 

We cannot know what will be the circumstance of tomorrow's 
issues Involving due process and equal protection. But we do 
know that those decisions must be made with a respect for the 
Constitution and an understanding that the decisions will 
inevitably affect how millions of Americans live. 

In Judge Bork’s much-quoted Indiana Law Journal article 
"Neutral Principles and Some First Amendment Problems47 
Indiana Law Journal 1 (1971), he speaks of the Supreme Court as a 
"major power center," Id. at 2, in part because of its power to 


6 



3588 


define the freedoms of both the majority and the minority througl 
the interpretation of the Constitution. And in describing the 
role of the courts, he points out that "Courts must accept any 
value choice the legislature makes unless it clearly run© 
contrary to a choice made in the framing of the Constitution." 

Id. at 10-11. He argues that most of "substantive due process 
... Is and always has been an improper doctrine," ici. at 11; 

"that most of substantive equal protection is also improper," 
id .; and that "the equal protection clause has only two 
legitimate meanings": "formal procedural equality" and a 
requirement "that government not discriminate along racial 
lines," Id. He argues that the "bare concept of equality 
provides no guide for courts," id. and he further asserts that, 
id . at 12: 

There is no principled way in which anyone can 
define the spheres in which liberty is required 
and the spheres in which equality is required. 

These are matters of morality, of Judgment, of 
prudence. They belong, therefore, to the 
political community. In the fullest sense, these 
are political questions. 

EQUAL PROTBCTIOK 

Through his writings, speeches, and testimony before this 
Committee, Judge Bork has: (1) demonstrated his disagreement 
with some of the most crucial equal protection decision© of our 


7 



3589 


lifetime; (2) announced hie adoption of a reasonable basis test 
which would provide less equal protection to racial minorities 
and women than they currently enjoy; and (3) announced his 
opposition to constitutional protection for racial minorities and 
women from discrimination by the federal government. On these 
bases alone, each of which is explored hereafter. Judge Bork does 
not deserve to be confirmed as an Associate Justice of the 
Supreme Court, 

1, Judge Bork Disagrees filth and Hay Seek to Overrule Some 

of the Most Important Equal Protection Decisions of Our 
Llfetlpe._ 

No doubt, the most important Supreme Court decision In our 
lifetime -- and in our country’s presentation of our renewed 
liberty to the outside world — was Brow n v. Board o f Edu c ation 
o f T opeka, 347 U.S. 483 <1954). Although the constitutional 
basis for B rown Is contrary to the orlglnallst views of Judge 
Bork, he nevertheless somewhat Inexplicably has not severely 
criticized the constitutional underpinnings of Brown . In fact, 
he has even told this Committee that he agrees with the Court’s 
result in Bro wn, whatever the constitutional basis of that 
decision might be. 

Judge Bork, however, strongly disagreed in his testimony 
before this Committee with the result and reasoning in the 
companion case to B rown , the unanimous decision in Bolling v. 
Sharpe , 347 U.S. 497 (1954), In which the Court held that school 
segregation In the District of Columbia was unconstitutional. 


8 




3590 


This decision and Judge Boric’s opposition to It are discussed 
toward the end of this statement. 

What Is discussed here Is Judge Boric's disagreement with and 
opposition to other landmark equal protection decisions rendered 
both before and subsequent to Brown . Included are the Supreme 
Court decisions: (a) finding Judicial enforcement of racially 
restrictive covenants to be unconstitutional; (b) striking down 
the poll tax laws; (c) establishing the "one-person one-vote" 
principle; and (d) upholding Congress' bans of literacy tests for 
voting. With regard to all of these landmark decisions. Judge 
Bork reiterated his disagreement with these decisions in his 
confirmation testimony before this Committee. 

a. Enforcement of R a cially Restrictive Covenants 

Sh elley v. Kraemer , 334 U.S. 1 (1948), In which the Supreme 
Court held that the Fourteenth Amendment prohibits state court 
enforcement of racially restrictive covenants In the ©ale of 
property, was a landmark case not only because of Its holding but 
also because it was the first case In which the Solicitor General 
filed an amicus brief In a civil rights case. Opposing both the 
amicus position of the United States and the unanimous decision 
by the Supreme Court, Judge Bork has argued that there is no 
constitutional basis for the Shelley decision: 

I doubt ... that it is possible to find neutral 
principles capable of supporting ... Shelley v. 
Kraemer.... The decision was, of course, not 


9 



3591 


neutral in that the Court was most clearly not 
prepared to apply the principle to cases it could 
not honestly distinguish. 

Shelley ... converts an amendment whose text and 
history clearly show it to be aimed only at 
governmental discrimination into a sweeping 
prohibition of private discrimination. There i9 
no warrant anywhere for that conversion. 

Bork, "Neutral Principles,” 47 Indiana Law Journal 15-17 (1971). 

During his confirmation hearings, Judge Bork reaffirmed his 
belief that there was no constitutional basis for Shelley , and he 
also argued that Shelley "has never been applied again.” 
Transcript at 127 (Sept. 15, 1987), He is wrong on both counts. 

First, Chief Justice Vinson's decision in Shelley was 
expressly based on extensive historical precedent holding that 
judicial actions are every bit as much the actions of government 
as are the laws passed by legislators and the actions of 
executive officials. The cases the Chief Justice relied on 
included Bridges v. C alifornia, 314 US. 252 (1941) (holding that 
court enforcement of a common law rule relating to contempts by 
publications constituted unconstitutional state action); American 
Federation of Labor v. Swing. 312 U.S. 321 (1941) (holding 
enforcement by state courts of common law to restrain peaceful 
picketing constituted state action prohibited by the 
Constitution); Cantw ell v. Connecticut , 310 U.S. 296 (1940) 
(holding that a state conviction for breach of the peace violated 


10 



3592 


the due process guarantee of freedom of religion ); Ex parte 
Virginia , 100 U.S. 313 (I860) (holding unconstitutional the 
actions of a Judge restricting Jury service to whites). Numerous 
other decisions could also have been cited, including virtually 
every criminal case in which a Judge is found to have violated a 
defendant's constitutional rights, and including the landmark 
prior restraint decision in Near v. Minnesota . 283 U.S. 697 
(1931) (holding that a Judicial prior restraint on the press 
violates the Fourteenth Amendment). 

Second, as to the subsequent application of Shelley , the 
Supreme Court only five years later in Barrows v. Jackson , 346 
U.S. 249 (1953), held that it would be a violation of the 
Fourteenth Amendment for a state court to award damages against a 
white seller who sold property to a black buyer in breach of a 
restrictive covenant. As the Court recognized: 

The action of a state court at law to sanction the 
validity of the restrictive covenant here involved 
would constitute state action as surely as it was 
state action to enforce such covenants In equity, 
as in Shell ey. 

Barrows, 346 U.S. at 254. More recently, in Palmore v. Sldotl , 
466 U.S. 429 (1984), the Supreme Court held that a state court's 
denial of child custody to a white mother who had married a black 
husband violated the Fourteenth Amendment. Chief Justice Burger, 
writing for a unanimous Court, noted in passing that the "actions 
of state courts and Judicial officers in their official capacity 


11 



3593 


have long been held to be state action governed by the Fourteenth 
Amendment.” Paimore . 466 U.S. at 432 n.1, citing Shelley v. 
Kraemer , 334 U.S. 1 (1948), and Ex parte Virginia , 100 U.S. 339 
(1880) . 

The point here is not simply that Judge Boric's 
characterizations of the law prior and subsequent to Shelley are 
wrong. Rather, the point is also that he appears to be 
insufficiently informed about, and perhaps unconcerned about, 
what the actual state of the law is on a matter of such 
Importance to racial minorities. 

b. Poll Ta x Law s 

Poll tax laws were a common means of disenfranchising 
minority and poor voters. The manner in which the poll tax law 
worked in Virginia is illustrative. Voters were required to pay 
the tax of SI.50 six months before the election in which they 
wished to vote. Voters received no notice that the tax was due 
unless they owned sufficient property to be subject to the state 
personal property tax, in which case the poll tax was included In 
the property tax assessment. Registered voters who failed to pay 
the tax were removed from the rolls. New registrants were 
required to pay a retrospective poll tax for previous years in 
which they had not paid the tax. In Harper v. Virginia State 
Board of Elections , 383 U.S. 663, 668 (1966), the Supreme Court 
held this Virginia law unconstitutional under the equal 
protection clause of the Fourteenth Amendment on the ground that 


12 



3594 


the poll tax law denied the fundamental right to vote to “those 
unable to pay a fee to vote.*' 

Judge Bork, In his writings and In two sets of testimony 
before this Committee, has disagreed with Harper . At his 
confirmation hearings before this Committee In 1973, Judge Bork 
dismissed the poll tax as "a very small poll tax which was not 
discriminatory," and he characterized Harper as “wrongly 
decided." Nomination of Robert H. Bork to be Solicitor General: 
Hearings Befo re t he Senat e Comm, on the Judiciary , 93rd Cong., 
1st Sess. 17 (1973). Judge Bork reiterated this criticism two 
years ago: 

[T)he Court frequently reached highly 
controversial results which It made no attempt to 
Justify in terms of the historic constitution or 
In terms of any other preferred basis for 
constitutional decision making. 1 offer a single 
example. In Harper v. Virginia Board of 
Ele ctions , 383 CJ.S. 663 <1966), the court struck 
down a poll tax used in state elections. It was 
clear that poll taxes had always been 
constitutional, if not exacted in racially 
discriminatory ways. 

Bork, "Forward," In G. McDowell, The Constitution and 
Contemporary Constitutional Theory , vii (1985). And Judge Bork 
confirmed his criticism of Harper this month In an exchange with 
Senator Heflin: 


13 




3595 


Senator Heflin. Well, you know, I have 
looked back on a lot of decisions, but this poll 
tax, this Virginia thing, gives me concern. You 
basically' 39 I understand it, say that It was not 
discriminatory. 

Judge Bork. There was no allegation of 
discrimination in that case. 

Senator Heflin. There was no allegation? Is 
that the distinction you made? Because there is 
no question to me that a poll tax that required 
three years of history of payment, that the last 
payment had to be six months in advance, and you 
had to go to the courthouse to pay it was designed 
to prevent the poor and blacks from voting. I do 
not think there is any question that that is it. 

Judge Bork. Senator, I did not discuss the 
case in those terms, and the Supreme Court did not 
discuss the case as one in which a poll tax that 
was designed to keep blacks from voting. 

Transcript at 17 (Sept. 16, 1067). 

Among the problems with Judge Bork's disagreement with 
Harper is the fact that the Supreme Court in its decision 
expressly recognized that the "Virginia poll tax was born of a 
desire to disenfranchise the Negro." Harper , 363 U.S. at 666 
n.3. This genesis of the turn-of-the-century enactment of poll 
tax laws throughout the South was no secret. In fact, in the 


14 



3596 


same year that the Supreme Court In Harper recognized the racial 
purpose of the Virginia poll tax law, similar findings were made 
by lower federal courts regarding the poll tax laws in Texas and 
Alabama. In United St ates v. Texas, 232 P. Supp. 234 (W.D, Tex. 
1966), a three-judge federal court held that a "primary purpose 
of the" Texas poll tax law "was the desire to disenfranchise the 
Negro." 252 F. Supp. at 245. The court noted a report of the 
Texas legislature that the poll tax was popular because of "a 
desire to disenfranchise the Negro," 252 P. Supp. at 244, and the 
court quoted contemporaneous accounts of the racial purpose 
underlying the original adoption of the Texas poll tax, 252 F. 
Supp. at 242-43 n.44. In U nited States V. Alabama . 252 P. Supp. 
95 (M.D. Ala. 1966), another three-judge court found; 

[FJrom its inception the Alabama poll tax was 
illegal and Invalid as an attempt to subvert the 
Fifteenth Amendment to the United States 
Constitution. The necessary effect of the poll 
tax as adopted In 1901 was to disenfranchise Negro 
voters. The history of the poll tax leaves no 
doubt that this was its sole purpose. 

252 F. Supp. at 99 (brackets added). The words of the framers of 
the Alabama poll tax, according to contemporaneous accounts, were 
as avowedly racial as those at the Virginia convention: 

"(IJt is our purpose, it is our intention, and 
here is our registered vow to disenfranchise every 


15 



3597 


Negro In the state and not a oingle white man." 

252 F. Supp. at 98 (brackets added). 

Even If the poll tax laws struck down In Harper and In the 
other cases had not been racially motivated. Judge Bork's 
criticism of Har per a9 being wrongly decided Is worrisome for 
another reason. 1.e■ , that he believes that financial and 
property restrictions on the fundamental right to vote are 
perfectly consistent with his view of the equal protection 
clause. If so, Judge Bork disagrees with settled equal 
protection law holding that states may not restrict the 
fundamental right to vote to owners of real property. Hill v. 
Stone, 421 U.S. 289 (1975); Phoenix v. Kolodzle.lskl, 399 U.S. 204 
(1970); Clprlano v. Ho uma. 395 U.S. 701 (1969); Kr amer v. U nion 
Free S chool Dist rict , 395 U.S, 621 (1969); and similarly holding 
that states cannot require candidates to pay large filing fees 
that exclude Indigent candidates, Lu bln v. Pa nlsh, 415 U.S. 709 
(1974); Bullock v. Carter, 405 U.S. 134 (1972). 

c. The "One-Person One- Vote* Principle 

Among the most Important equal protection decisions of our 
era were the "one-person one-vote" reapportior.ment decisions In 
Reynol ds v. Sims . 377 U.S. 533 (1964), and its progeny. Prior to 
Reyn olds there were often enormous variations in the population 
of legislative districts within a state, a fact which allowed a 
small minority of voters to elect a majority of the state 
legislature. As a result of R eynolds . the districts from which 


16 




3598 


state or local officials are elected now contain an equal 
population. Needless to say, Revnolda and Its progeny have been 
crucial to the ability of all citizens, Including of course 
minority citizens, to secure equal political representation. 

Judge Bork has been a frequent critic of Revnolda and Its 
progeny. In 1968, Judge Bork explained his criticism: 

(o]n no reputable theory of constitutional 
adjudication was there an excuse for the doctrine 
It imposed. what the Court In effect decided was 
that all state legislatures. Including both houses 
of bicameral legislatures, must be apportioned on 
a population basis — "one-man-one-vote" -- 
regardless of political, geographic, or historic 
considerations, or the analogy to the federal 
Congress, or any other factors that might suggest 
to the voters themselves the wisdom of some 
weighing of representation. 

Chief Justice Warren's opinions In this 
series of cases are remarkable for their Inability 
to muster a supporting argument. They contain 
little more than a passionate reiteration that 
equal protection of the laws must mean equal 
weight for each vote.... [T]he "one-man-one-vote" 
rule, far from being an application of the 
Fourteenth Amendment, ran counter to the text of the amendment, 
the history surrounding Its adoption and ratification, and the 


17 



3599 


political practice of Americans from colonial times onward. 

Bork, "The Supreme Court Needs a New Philosophy," Fortune, 166-68 
(Dec. 1968). Three years later. Judge Bork reiterated that 
"Chief Justice Warren’s opinions in this series of cases are 
remarkable for their inability to muster a single respectable 
supporting argument.” Bork, "Neutral Principles," 47 Indiana Law 
Review 18 (1971). This past summer. Judge Bork proposed a 
reasonable basis alternative to the one-person one-vote 
principle: 

I wish [the Court) had followed the route that 
Justice Stewart laid out in the Colorado case — 

Lucas against the General Assembly -- which is to 
say, "Show me that a majority can reapportion 
periodically, and I will approve almost any 
reasonable or rational result," which Is to say 
"Just show me that the majority can reapportion." 

I think this Court stepped beyond its 
allowable boundaries when it Imposed one man, one 
vote under the Equal Protection Clause. That Is 
not consistent with American political theory, 
with anything in the history or the structure or 
the language of the Constitution. 

Bork, "Bicentennial of the U.S. Constitution," 22-23 (Worldnet 
Interview, June 10, 1987). And, in his testimony before this 
Committee, Judge Bork reaffirmed his criticism of Reynolds and of 


18 



3600 


the one-person one-vote principle. Transcript at 200 (Sept. 15, 
1987) . 

Although Judge Bork has on Occasion premised his criticism 
and his alternative proposal, as noted above, on the reasonable 
basis test proposed by Justice Stewart In several early 
dissenting opinions. Justice Stewart In fact eventually abandoned 
his reasonable basis test and Instead accepted the one-person 
one-vote principle. See, § g_-. Gaffney v. Cum mings. 412 U.S. 735 
(1973); Mahan v, Howell, 410 U.S. 315 (1973). But the 
circumstances of Justice Stewart's original dissents In 1964 are 
an Indication of the degree of malapportionment which Judge Bork 
would regard as acceptable. In his since-recanted dissent In 
WMCA v. Lomenzo. 377 U.S. 663, 744-65 (1964), In which Justice 
Stewart first proposed his reasonable basis standard. Justice 
Stewart would have upheld districting plans In New York and 
Colorado under which barely one-third of the electorate could 
have elected a majority of the state legislature. WMCA v. 

Lome nzo. 377 U.S. at 647-48; Lucas v. Colorado General Assembly . 
377 U.S. 713. 729 (1964). In Colorado the votes of some voters 
were worth 3.6 times as much as the votes of others, Lucas , 377 
U.S. at 728; in New York the votes of some voters were worth 21 
times as much as the votes of others. WHCA . 377 U.S. at 648. 
Disparities of this magnitude are apparently acceptable to Judge 
Bork under the reasonable basis standard now advocated by Judge 
Bork. 


19 



3601 


d. Congre ss* Ban on Literacy Testa 

Katzenbach v. Morgan . 384 U.S. 641 (1966), and Oregon v. 
Mitchell , 400 U.S. 112 (1970), concern the validity of certain 
portions of the Voting Rights Act as enacted In 1965, and as 
amended In 1970. 

In Katzenba ch v. Morga n the Supreme Court upheld the 
constitutionality of Section 4(e) of the 1965 Act, which barred 
the states from requiring that voters be able to read or write In 
English so long as they had attended a school In the United 
States or Puerto Rico which was taught In a language other than 
English. The effect of Section 4(e) was to enfranchise the large 
number of Puerto Rican Americans, primarily those educated in 
Puerto Rico, who were literate In Spanish rather than English. 

The Supreme Court concluded that, regardless of whether a court 
might not hold the English language literacy requirements 
unconstitutional. Congress was empowered to ban such tests under 
Section 5 of the Fourteenth Amendment. 

In Oregon v- Mitch ell the Court upheld part of the 1970 
amendments to the Voting Rights Act. Specifically, the Court 
unanimously agreed that Section 201 of the Act, which established 
a national ban on literacy tests, was constitutional. Several 
members of the Court reached this conclusion based on Section 5 
of the Fourteenth Amendment. 

Although Judge Bork Is ordinarily deferential to 
majorltarlan legislative power as against the rights of 


20 



3602 


individuals, he has repeatedly criticized these decisions. In 
1972, he stated: 

The Morga n decision embodies revolutionary 
constitutional doctrine, for it overturns the 
relationship between Congress and the Court. 

Under American constitutional theory, it is for 
the Court to say what constitutional commands mean 
and to what situations they apply. Congress may 
implement the Court's interpretation, as it is 
specifically empowered to do by Section 5 of the 
Fourteenth Amendment. But Section 5 was intended 
as a power to deal with implementations only. 

Morgan would also overturn the relationship 
between federal and state governments. Once 
Congress is conceded the power to determine what 
degree of equality is required by the equal 
protection clause, it can strike down any state 
law on the ground that its classifications deny 
the requisite degree of equality. Morgan thus 
Improperly converts Section 5, which Is a power to 
deal with remedies, into a general police power 
for the nation. 

Bork, Co nstit ution ality of the President's Busing Proposals , 10 
(American Enterprise Institute, 1972). That same year. Judge 
Bork reiterated his disagreement with "the broad, revolutionary 
sweep of the opinion." Hearings on the Equal Educational 


21 



3603 


Oppo rtunity Act Before the Subco mm. on Edu c ation o f the Senate 
Comm, o n Labor and.Publi c We lf are / 92nd Cong., 2d Sess. 1509 
{1972). 

In 1981, Judge Bork asserted: "I agree entirely with the 
dissent ... In Katzenbachv. Morgan." Heari ngs on the Human Life 
Bill Before the Subcomm. on Separation of_Powers_of Jthe_Senate 
Comm, on the Judiciary/ 97th Cong., 1st Sess. 310 (1981). He 
continued 

[I]n Katzenb ach v. Morga n, 384 U.S. 641 (1966), 
the Court held that Congress could eliminate 
literacy in English as a condition for voting by 
exercising the power granted In Section 5 of the 
Fourteenth Amendment. In Orego n v. M itchel l , 400 
U.S. 112 (1970), a unanimous Court upheld 
Congress' elimination of all literacy tests. 

There are other de< islons that declare a 
congressional power to define substantive rights 
guaranteed by the thirteenth, fourteenth, and 
fifteenth amendments by employing the granted 
power to "enforce” the provisions of those 
amendments.... (It is] my conviction that each of 
these decisions represents very bad, indeed 
pernicious, constitutional law. 

Id. In a speech to the Seventh Circuit, apparently given In 
1981, Judge Bork again denounced the decision: 

22 


88-374 0 - 89-29 





3604 


Katzenbachv. _Morgan is terrible constitutional 
law. It stands for a revolution In the 
constitutional roles of the judiciary and the 
legislature. It cannot live in the same 
jurisprudence with Marbury v. Madison .... Liberal 
approval of Katzenbach v. Morgan was unprincipled. 
Speech, Seventh Circuit, S (undated). 

Judge Bork reaffirmed his position in his testimony before 
this Committee. For example, in response to a question from 
Senator DeConcini, Judge Bork explained: "But my views on 
Katzenbach v. Morgan have not changed." Transcript at 71 (Sept. 
16, 1987). The following day, however. Judge Bork added: "I 
have, in matter of fact, no view of literacy tests. I have never 
looked at how they operate." Transcript at 69 (Sept. 17, 19B7). 

If the Supreme Court were to overrule Katze nbac h v. Morgan 
and Oregon v. Mitchell, the practical consequences would be 
extraordinary. 

Host Immediately, all existing state literacy requirements 
would automatically go back into effect. For example, the New 
York English language requirement at issue in Katzenbach is still 
contained in that state's constitution. New York Constitution, 
Art. II, Sec. 1. Several hundred thousand Puerto Rican residents 
of New York would be immediately disenfranchised. 

There also would be longer-term ramifications in that a 
number of civil rights statutes dating back to 1866 would 


23 




3605 


probably have to be declared unconstitutional, at least in part. 
First, the Civil Rights Act of 1866, which bars racial 
discrimination by private entities and individuals, has been 
upheld under the enforcement section of the Fourteenth Amendment, 
even though such private conduct is not state action and does not 
violate either the Thirteenth or Fourteenth Amendments. Jone s v. 
Alfred H. Mayer Co.., 392 U.S. 409, 437-4 4 (1968). The 1866 Act 

probably could not be upheld if Katzenhach were overturned. 
Second, the “discriminatory effect" test of the Voting Rights 'Act 
of 1965 would be in jeopardy. In City of Rome y. U nited States,"' 
446 U.S. 156 (1980), the Supreme Court, relying on Katzenbac h v . 
Morgan and Oregon v. Mitchell, rejected a challenge to the 
constitutionality of this "discriminatory effect' 1 standard. City 
of_Rome, 446 U.S. at 176-78. Third, part of the employment 
discrimination provisions in Title VII of the Civil Rights Act of 
1964. as extended to the states in 1972, would also be in 
jeopardy. Several members of the Supreme Court have noted that 
the application of the Title VII "discriminatory effect*' test to 
the states may turn on the meaning and vitality of Katzenbach v. 
Morgan. Fi_tzpatrick v. Bltzer, 427 U.S. 445, 458 (1976) 

(Brennan, J., concurring). Finally, the Supreme Court has held 
that Congress Ccin make it a crime for private individuals to 
engage in conspiracies or violence for the purpose of punishing 
or preventing exercise of constitutional rights, such as the 
right to vote. United States v. Guest , 303 U.S. 745 (1966); id. 


24 






3606 


at 761-63 (Clark, J. , concurring): _id. at 774-86 (Brennan, J., 
concurring). Since such private conspiracies and violence are 
not state action, and thus do not themselves violate the 
Constitution, Congress might well be powerless in Judge Bork’s 
view to protect Americans from attack or retaliation by extremist 
groups. 

2. Judge Bork Would Permit Any Discrimination Under the 
Equal Protection Clause So Long as There Is Some 
Reasonable Basis for the Discrimination, a Standard 
Which Would Provide Less Protection to Racial 
Minorities and Women Than Is Currently Guaranteed._ 

In his writings and speeches prior to these confirmation 

hearings, Judge Bork argued that the Fourteenth Amendment’s 

guarantee of equal protection should be limited to matters of 

race and ethnicity, thereby excluding protection from gender 

discrimination and from other forms of discrimination. For 

example, in his now-famous 1971 law review article. Judge Bork. 

stated that "cases of race discrimination aside, it Is always a 

mistake for the Court to try to construct substantive Individual 

rights under the due process or the equal protection clause." 

Bork, “fleutral Principles, ” 47 Indiana Law Review 18 (1971). 

Stated differently and more recently: "I do think the Equal 

Protection Clause probably should have been kept to things like 

race and ethnicity." Bork, "Bicentennial of the U.S. 

Constitution," 12 (Worldnet Interview, June 10, 1987). 

During his testimony before this Committee, Judge Bork 

abandoned his totally exclusionary approach and agreed that the 


25 




3607 


equal protection clause does protect all persons. But he also 
announced both his rejection of the Supreme Court’s standards for 
determining unconstitutional discrimination and his proposed 
replacement of those standards with a single reasonable basis 
test for determining the constitutionality of all forms of 
discrimination. He thereby proposed to remove the strong 
constitutional protection from discrimination currently accorded 
to racial minorities, women, and other vulnerable individuals. 

As this Committee is now well aware, under settled 
constitutional doctrine the Supreme Court applies a three-tiered 
approach to determine Fourteenth Amendment constitutionality of 
goveinmentally drawn distinctions and discriminations. 

First, for discrimination against racial minorities and 
aliens, the Court uses a strict scrutiny standard which permits 
the discrimination to stand only if justified by a compelling 
governmental interest. Under this strict scrutiny test, 
challenged intentional discrimination is virtually always held 
unconstitutional. 

Second, with regard to discrimination based on gender or on 
the illegitimacy of children, the Court uses a heightened 
scrutiny standard which allows the discrimination to stand only 
if the distinction serves important governmental objectives and 
if the discriminatory means employed are substantially related to 
the achievement of those objectives. Under this intermediate 
standard, nearly every instance of discrimination against women 
which has readied the Court in the past decade has been struck 

26 



3608 


down as unconstitutional. 

Finally, as to all other distinctions and discriminations 
(ordinarily economic distinctions among corporate enterprises), 
the Court applies a rational basl9 or reasonable basis test which 
permits the discrimination to stand so long as It is supported by 
any rational or reasonable basis. Under this lowest standard, 
only a few Instances of challenged discrimination have been found 
unconstitutional in the past two decades. 

Rejecting the established three-tier approach in testimony 
before this Committee, Judge Bork proponed instead a single 
reasonable basis test. For example, when asked by Senator 
DeConcini whether he would take the established three-tler 
approach "to the Court, if you are confirmed," Judge Bork 
replied: "No." Transcript at 143 (Sept. 17, 1987). His single 

test. Judge Bork ventured, "Is an entirely different methodology. 
Instead of saying what degree of scrutiny is this group entitled 
to when a statute disadvantages them. It asks, 1© the 
differentiation made, the disadvantage made reasonable in light 
of a valid governmental purpose?" W. at 141. As Judge Bork 
explained his test a day earlier in response to a question from 
Senator DeConcini: "A reasonable basis test allows a little more 
play in the joints, I think, for the Court to listen to the 
legislatures and look at the society and bring evidence In and 90 
forth." Transcript at 76 (Sept. 16, 1987). 

The primary problem with Judge Bork'8 reasonable basis test 
Is that It sounds similar If not identical to the reasonable 


27 



3609 


basis test used previously to deny equal protection of the laws 
to racial minorities, to women, and to other vulnerable 
Individuals. Compare, for example, the following application by 
eight Supreme Court Justices of the reasonable basis test to the 
enforced segregation of blacks: 

So far, then, as a conflict with the fourteenth 
amendment is concerned, the case reduces itself to 
the question whether the statute of Louisiana is a 
reasonable regulation, and with respect to this 
there must necessarily be a large discretion on 
the part of the legislature. In determining the 
question of reasonableness, it is at liberty to 
act with reference to the established usages, 
customs, and traditions of the people and with a 
view to the promotion of their comfort, and the 
preservation of the public peace and good order. 

Gauged by this standard, we cannot say [this law] 
is unreasonable, or ... obnoxious to the 
fourteenth amendment. 

Plessy v. Ferguson. 163 U.S. 537, 550-51 (1896) (brackets and 
ellipsis added). 

Women have fared no better under the reasonable basis test. 
In Bradwell v. Illinois, 83 U.S. 130 (1973), the Court found it 
reasonable for women to be excluded from the practice of law. In 
Radice v. New York, 264 U.S. 293, 294 (1924), the Court upheld a 
law barring women from late-evening restaurant employment as not 


28 





3610 


"unreasonable." And, as recently as 1961, all nine Justices 
found the exclusion of women from mandatory jury service to he a 
"reasonable classification." Hoyt v. Florida , 368 U.S. 57, 61 
(1961). 

A second problem with Judge Bork's reasonable basis test is 
its subjectivity. For example, although Judge Bork testified 
that "It is Irrational to make a distinction between persons on 
racial grounds, utterly irrational," Transcript at 75 (Sept. 16, 
1987), other judges, even Justices, may believe that It Is 
entirely reasonable to make racial distinctions for affirmative 
action purposes so as to create, for example, a diverse student 
enrollment beneficial to all students In view of our country's 
racial and cultural diversity, see Regents of the University of 
California v. Bakke, 439 U.S. 265 (1978). 

And although Judge Bork Is confident that he "know[sJ that 
for some purposes it Is rational, reasonable to make a 
distinction between the genders, between the sexes," Transcript 
at 75 (Sept. 16, 1987) (brackets added), he never explained which 

purposes; and he never differentiated between what he considers 
as unreasonable discrimination against women and what he believes 
to be reasonable discrimination against women. And, with regard 
to those instances of gender discrimination and sexual harassment 
that Judge Bork believes to be reasonable, rest assured that 
other reasonable persons may find his beliefs unreasonable, see 
Vinson. v._ Taylor, 753 F.2d Ml (D.C. Clr. 1985) (three-Judge 
panel finding sexual harassment), reh'q en ban c denie d, 760 F.2d 

29 





3611 


1330 (D.C. Oir. 1985) (Bork dissenting from rehearing en banc and 
finding no sexual harassment) , affjjd sub non, , Herito r Sa ving s v. 
Vinson, 106 S.Ct. ?399 (1986) (unanimous decision finding illegal 
sexual harassment). 

It is difficult at best to understand why Judge Bork would 
announce (for the first time at his confirmation hearings) his 
rejection of the settled constitutional standards which were 
adopted to provide meaningful equal protection for racial 
minorities, for women, and for other vulnerable individuals who 
in fact had been given little or no equal protection in the past 
under the lenient reasonable basis test. It is equally puzzling 
why Judge Bork would announce as his test a subjective reasonable 
basis test seemingly similar to and maybe Identical to the 
reasonable basis test that for so long denied equal protection of 
the laws to racial minorities and to women. 

Although It is of course acceptable for a Judge to change 
his views, confirmation conversions should be closely questioned. 
It is not acceptable, however, for a Supreme Court nominee to 
announce his opposition to settled constitutional standards which 
protect the rights of racial minorities and women. And Just as 
it was wrong to apply a reasonable basis test in Pl ess y, It is 
wrong to propose readoption of a singular reasonable basis test 
today. 

3. Judge Bork's Disagreement With Bolling y..Sharpe Could 
Lead to Little or No Constitutional Protection Fro* 
Discrimination by the Federal Government Against Racial 
Minorities and Women._ 


30 



3612 


Although the Supreme Court's unanimous decision in Brown v. 
Board of_Education_of Topeka, 347 U.S. 483 (1954), is not 
consistent with Judge Bork'e original 1st principles. Judge Bork 
has not attacked Brown in his writings nor did he disagree with 
it in his testimony before this Committee. 

Judge Bork, however, did disagree with the Supreme Court's 
unanimous decision in the companion case of Bolling v. Sharpe , 

347 U.S. 497 (1954), in which the Court struck down school 
segregation In the District of Columbia as unconstitutional under 
the Fifth Amendment's due process clause. The Court in this case 
could not rely -- as in Brown -- on the Fourteenth Amendment's 
guarantee of equal protection because the Fourteenth Amendment 
applies only to the states, and the District of Columbia is not a 
state. Relying instead upon the liberty interest inherent in 
substantive due process, the Court unanimously recognized the 
unfairness of discrimination and thereby held "that racial 
segregation in the public schools of the District of Columbia is 
a denial of the due process of law guaranteed by the Fifth 
Amendment to the Constitution." Bolli ng, 347 U.S. at 500. 

As an opponent of substantive due process. Judge Bork 
disagreed with the unanimous decision in Bollin g in his testimony 
before this Committee. For example, in response to questions 
from Senator Specter, Judge Bork stated that "constitutionally 
that is a troubling case," Transcript at 150 (Sept. 16, 1907); "I 
did not accept it," id. at 151; and "I have not thought of a 
rationale for it," id. at 152. 


31 




3613 


Judge Bork stated thereafter that he nevertheless would not 
overrule it- "My doubts about the substantive due process of 
Bolling v. Sharpe does not mean that I would ever dream of 
overruling Bol ling v. Sharpe." Id . at 154. He added: "And 
furthermore I should make It clear, as I have said repeatedly, 
segregation is not only unlawful but immoral.'’ Id. 

What remains unclear, however, is how Judge Bork would have 
voted in Bolling had he been given the opportunity to do so. 

Also unclear is how he might have voted in cases applying the 
Bolling decision In other areas of discrimination, and how he 
might vote in similar cases hereafter {if he were elevated to the 
Supreme Court) in view of his opposition to the inclusion of 
liberty as part of substantive due process. 

The liberty principle applied in Bolling has not been 
limited only to striking down federal school segregation. In the 
area of race discrimination, it has also been applied to strike 
down and to remedy federal contributions to segregated public 
housing. H_ijn s v. Gautreaux, 425 U.S. 284 (1976). 

The Bolling liberty principle has also been applied to 
gender discrimination practiced by the federal government. For 

example, in Frontier o v._Rich ardson , 411 U.S. 677 {1973), the 

Supreme Court ruled on an 8-1 vote that it was a violation of the 
Fifth Amendment's due process clause to place greater burdens on 
servicewomen than on servicemen in obtaining dependents’ medical 
and dental benefits. 

Although the Bo llin g liberty principle is established 


32 



3614 


constitutional doctrine, it is contrary to Judge Bork's 
originalJst principles and thereby unlikely to gain his 
recognition, much less his support. This is not to say that 
Judge Bork would personally approve of racial and gender 
discrimination by the federal government; he Just would not be 
able to find such discrimination unconstitutional. And, as Judge 
Bork pointed out to Senator Specter: "If they [the people] do 
not like what I am doing with respect to liberty, they have no 
recourse." Transcript at 229 (Sept. 18, 1987). 

CONCLUSION 

Millions of Americans — who are not legal scholars -- care 
deeply about the task before you. They care not because of 
concern about Judge Bork's intellect or his knowledge of legal 
precedent. They care because the Supreme Court affects their 
lives — our lives -- as much as any other institution on this 
earth. We do not need a Supreme Court Justice who relishes this 
appointment as an "intellectual feast." Transcript at 99 (Sept. 
19, 1987). We want — and need -- a Judge to whom we can turn 
with confidence, as Justice O’Connor so aptly phrased It, "when 
we seek that which we want most from our government: equal 
Justice under the law." 


33 




3615 


Senator Kennedy. You’ve expressed the view which I think has 
to be of concern to the members of this committee and to the 
Senate, and most importantly to the country, about whether we 
want to risk going back, refighting old battles, reopening old 
wounds, or going back to a different period in our time. 

You mentioned and listed some of the areas in which Judge Bork 
had taken positions which would have denied in a very significant 
way the march towards progress which you have been so much a 
part of—his position in support of poll taxes, his opposition to one 
man, one vote; his support in terms of racially restrictive cov¬ 
enants; and denial of the Senate’s authority and power to strike 
down the discrimination in public accommodations and in the 
areas of literacy tests. 

And I think you’ve given us a powerful lesson in terms of the 
judge’s criteria or tests that he would use in protecting the rights 
of women and others in our society, such as the handicapped. 

And you've heard him speak of the reasonableness test and how 
he believes that he can come out about where the Supreme Court 
is today in the intermediate scrutiny test which they use today in 
their consideration of discrimination against women in our society. 

How much weight do you think that we should give to that con¬ 
clusion? Do you believe that there is, given his strong position, that 
has been well stated in commentary after commentary, that the 
equal protection clause does not apply really to women. Now, he’s 
stated other positions before the committee and indicated he used a 
reasonableness test and thinks that he may very well be able to be 
in the mainstream in terms of what the Supreme Court has over¬ 
whelmingly stated as the rights to women, and I’d like to believe 
that thats a continuing, on-going process. 

How much confidence should women, minorities, have in his 
stated position before this committee? We’ve considered the past, 
but let’s just focus on the present and what he testified before this 
committee. 

What can you say as an attorney, as a lawyer, about what the 
outcome would be if his position was the majority position? 

Ms. Martinez. As you pointed out, and more importantly as a 
practitioner of equal protection law and other kinds of law is where 
my concern comes in, as Senator Specter pointed out, equal protec¬ 
tion was applied to Chinese Americans in the Koramatsu case, and 
yet in 1947 it wasn’t applied to Mexican Americans. 

It wasn’t until Hernandez v. Texas came in that we were able to 
find that equal protection covered Mexican Americans in Hernan¬ 
dez v. Texas. If one looks carefully at the test announced by Judge 
Bork, the reasonable basis test for examining these various things 
that might be considered unconstitutional, one can see a great deal 
of trouble, and I urge you to read and I hope you will make part of 
your record my written presentation. 

Senator Kennedy. It will be made a part of the record in its en¬ 
tirety. 

Ms. Martinez. In which I quote from Plessy v. Ferguson. Plessy v. 
Ferguson used a reasonable basis test. It said: “so far then as the 
conflict with the 14th amendment is concerned the case reduces 
itself to the question whether the statute of Louisiana is a reasona¬ 
ble regulation and with respect to this, there must necessarily be a 



3616 


large discretion on the part of a legislature in determining the 
question of reasonableness. It is at liberty with that with reference 
to the established usages, customs and traditions of the people with 
a view to the promotion of their comfort and the preservation of 
the public peace and good order. Gauged by this standard, we 
cannot say this law, mandating the segregation of children of a 
white and colored races is unreasonable or obnoxious to the 14th 
amendment.” I, for one, hope we do not go back to that. 

Senator Kennedy. My time is up, Mr. Chairman. 

The Chairman. The Senator from Wyoming. 

Senator Simpson. Well, nice to see you again. 

Ms. Martinez. It’s nice to see you, Senator. 

Senator Simpson. We had some interesting times together with 
regard to the issue of illegal immigration and I came to know you 
very well, and I have great admiration for the spirited way you do 
your work and pursue the things that you deeply believe in. 

Ms. Martinez. Thank you so much. 

Senator Simpson. I share exactly the sentiments of Senator Ken¬ 
nedy about you as a person and you have fought the battles, and it 
was a great pleasure to get to know you better as we grappled with 
that tough national issue and hope that it works. 

We’ll assure that discrimination does not take place in the coun¬ 
try, and that’s one of the things we’ve built into the legislation and 
we will pursue that. 

But—I’m not going to say “but” and then say some really nasty 
things. I’m not going to do that because all everybody has ever 
talked about Bork so far has said “but”, and then they really 
hammer him flat. They just peel the scorched earth policy out of 
the old back and there they go. And it really is, I think, something 
to be very wary about. 

But you related some of the things you have fought for over the 
years, dedicated your life to by litigation, and it’s been very suc¬ 
cessful, some key cases in fighting for the lesser and then the dis¬ 
enfranchised, and the irony is as we talk about risking and rerun¬ 
ning old battles and opening old wounds and old scars, and those 
are phrases used, those did not come through the pro-Bork people. 

The specter of these things has come about by the anti-Bork 
people, black versus white. The list is so extraordinary that I’m 
saving it. It's sterilization and union busting and lunch counters 
and no protection for women and turning back the clock and anti¬ 
semitism and insensitivity to religious minorities and sexual har¬ 
assment of women and poll taxes to prohibit blacks when the case 
didn’t have anything to do with that, and Nixon’s firing of Cox, 
and cameras in the bedroom, and no right of privacy, and overturn¬ 
ing the Civil Rights Act of 1964, and restrictive covenants in deeds. 

If I read all that stuff just flowing out of here, and it’s cranked 
out of here by the metric ton, I’d be terrified by this man. 

Yet not one percent has said anything to challenge the extraordi¬ 
nary abilities of the man. And so you have worked in this area so 
long and so hard, and yet as Solicitor General and as an appellate 
court judge. Judge Bork has never advocated or issued a judicial 
opinion that has been less sympathetic to the substantive civil 
rights of minority or female plaintiffs than the position taken by 
the entire Supreme Court or by Justice Powell, who is continually 



3617 


held up in this procedure as the swing vote, and thus, if Bork were 
to take his place, I guess then he would be, obviously, the swing 
vote, which terrorizes people, it removes the balance on the Court. 

I think it discloses a pervasive ability of Justice Bork to pervert 
and distort, and cajole four of his fellow Supreme Court judges, 
which is—if he is that bad—what he is going to do. 

But let me ask you, because you do follow these cases and you 
are a superb lawyer: were you aware that, as a judge on the Court 
of Appeals for this District of Columbia Circuit—and what a court 
it is. There are some very extraordinary people on it. 

Ms. Martinez. Absolutely. 

Senator Simpson. Democrat and Republican, men and 
women- 

Ms. Martinez. Agreed. 

Senator Simpson. It covers the full spectrum of philosophy, and 
they do some beautiful judicial work. 

Judge Bork has consistently vindicated the civil rights of all the 
parties before him during his tenure on this court, on the court he 
sits. 

He has ruled for minorities or women, raising a substantive civil 
rights claim. He has ruled for them seven out of eight times, and 
while Solicitor General of the United States, in 20 substantive civil* 
rights cases, in eighteen of those twenty. Judge Bork argued in sup¬ 
port of the civil-rights plaintiff or the minority interest, and in fact 
the NAACP Legal Defense Fund sided with Judge Bork in 9 of its 
10 civil-rights briefs in cases in which the court made a substantive 
interpretation of federal statutory or constitutional law. 

And of all the judges, it was Justice William Brennan who sided 
with Judge Bork most of the time. 

Now, those are facts, and did those have any bearing on you as a 
thoughtful, conscientious lawyer who is trying to examine a case 
from both sides, and deal with it honestly and up front, and with¬ 
out emotion, fear, guilt, or racism? 

Ms. Martinez. Yes. That does have a bearing on me. I have 
looked at that. I have thought about it, and I would like to share 
with you how it looks to me, and why I still come out where I do. 

In looking at the cases that he has decided as a court of appeals 
judge involving minorities, women, these have not been necessari¬ 
ly, as you know. Senator, constitutional cases. 

Many of them have been statutory cases, not very difficult to 
decide all sorts of issues. In looking at his role as our Solicitor Gen¬ 
eral, I have looked at the positions there, too, but of course, as a 
practitioner, I understand keenly that it was precisely his job to 
represent his client, the U.S. Government, which was asking him 
to take these positions. 

And as you know, and I know that—and on occasion he has ex¬ 
pressed his personal disagreement with some of the decisions he 
argued on behalf of his client, the U.S. Government, in the Usery 
case. 

As a thinking lawyer, as someone who might even appear before 
Judge Bork some day, I have had to think about all of this, and 
why do I still conclude that I want to ask you not to confirm him? I 
have thought about it, and I think, ultimately, it comes down to 
questions of judgment, of temperament, and of trust. 



3618 


And in looking at Judge Bork’s temperament, as best I can see 
it—I do not know him personally—but from his writings, from his 
analysis, I find it wanting. 

He does not just disagree with Oregon v. Mitchell. It is “perni¬ 
cious constitutional law.” The judgment he reaches about literacy 
tests is a strong one, and he still says, “But I really have not had 
occasion to look at how literacy tests operate.” 

He says, “The poll tax was only $1.50 poll tax.” He does not look 
at precisely how Virginia imposed that $1.50 and what the impact 
might be on someone less fortunate than he is. 

And it is that quality of his that troubles me. I suppose it comes 
down to the fact that, in my view, he has too cramped a view of 
equal protection, and he is too quick to form an uniformed view of 
what equal protection might mean for the day to day reality that 
so many Americans live, and will in the future live. So that for 
those reasons, and certainly taking into account this man’s distin¬ 
guished public service, I have reluctantly concluded that I want to 
ask you not to confirm him. 

Senator Simpson. I thank you, and I just want to add one dimen¬ 
sion. That in the amicus briefs that he filed, he was not always rep¬ 
resenting the United States as a party. 

He testified here, and the record is clear, that he personally 
made the decision to get into some of those cases on the side of the 
minority claimant. He could have stayed out. 

That was a very important thing that he testified to, and I thank 
you, Mr. Chairman, and nice to see you, Vilma. 

Ms. Martinez. Thank you. 

The Chairman. Thank you. The Senator from Alabama. 

Senator Heflin. You mentioned the Virginia poll tax case and 
the writings pertaining to that, and I think you brought out the 
fact that there was this matter of having to own personal property 
or real property in order to be on a mailing list, and that other¬ 
wise, you would not have any notification. 

Judge Bork has been rather emphatic, that the issue of race was 
not involved in the Virginia poll-tax case before the Supreme 
Court. That there was no allegation of that. 

Assuming that is correct, does he base his rationale on the poor 
and their inability to pay. This would not indicate, would it, that 
he would believe that a poor person could be discriminated against, 
or that the equal protection of the laws did not apply to a poor 
person. 

From what you have seen, would you give us your evaluation of 
his explanation pertaining to his writings or pertaining to the Vir¬ 
ginia poll-tax case. 

Ms. Martinez. As I understood his statements about the Harper 
v. Virginia poll-tax case, they basically were that it was such a 
small amount of money, that he did not see how it could have a 
discriminatory impact based on economics. 

He has said that in his view it was not a race case, and- 

Senator Heflin. Now when was that decision rendered? Do you 
remember, offhand? The early 1960’s? 

Ms. Martinez. I think it was 1966. 

Senator Heflin. 1966? 

Ms. Martinez. I think it was 1966. 



3619 


Senator Heflin. And the nominal aspect of the money is his ex¬ 
planation? 

Ms. Martinez. Yes. That is my understanding of it. He said it 
was a very small poll tax, is the way he has described it. 

Senator Heflin. 1966 dollar evaluation as compared to today still 
would probably be in the neighborhood of—inflation added to it— 
about $5 or something, or maybe $4, something like that, wouldn’t 
it? 

Ms. Martinez. I think it- 

Senator Heflin. In other words, he did not criticize it on the 
basis of Constitution, but only on the nominal amount of the 
money of the poll tax? 

Ms. Martinez. That is my understanding, and that is what trou¬ 
bles me about his criticism of Harper , because I think it overlooks, 
as I have put it, overlooks how this nominal amount, what impact 
that nominal amount has on Americans not as privileged as he. 

Senator Heflin. Well, that is also a matter of concern—I am 
sure—to members of this committee. 

Ms. Martinez. Oh, yes. 

Senator Heflin. I mean, you have got the issue of not only the 
amount of money, but the past payment of 3 years, having had to 
pay it within 3 years. Anybody that is from the South knows that 
you can go back into the history of the Constitutional Conventions 
following Reconstruction days, and it is very clear that the lan¬ 
guage of the debates in those Constitutional Conventions was disen¬ 
franchising of the blacks. 

Ms. Martinez. Absolutely, and as you probably know, Senator, 
in the Harper opinion at footnote three, there is a statement that 
the Virginia poll tax was born of a desire to disenfranchise the 
Negro. 

So that although the case was not decided on those grounds, cer¬ 
tainly any student of history would recognize that the poll taxes 
were designed to disenfranchise blacks. 

And as you also know, I am sure, poll-tax laws were struck down 
that same year in Alabama, and my home State of Texas. 

The Chairman. Senator Specter. 

Senator Specter. Thank you, Mr. Chairman. 

Ms. Martinez, I join my colleagues in applauding your work, and 
thank you for coming here. 

Ms. Martinez. Thank you. 

Senator Specter. You talked about the equal protection clause 
and the standard for application, and you described I think Justice 
Stevens’ standard. 

And my question to you turns on what Judge Bork has said he 
would do by way of following Justice Stevens v standard on equal 
protection. Do you think that Justice Stevens’ standard has been 
an adequate one for appropriate scrutiny on the equal protection 
line? 

Ms. Martinez. No. I think that we have taken a very long time 
to get to the view of heightened scrutiny on women’s issues and 
strict scrutiny on race issues. Those standards seem to be working. 

Justice Stevens talks of a reasonable basis scrutiny, but the rea¬ 
sonable person viewing it being the discriminated against person, 
himself or herself, not any reasonable person. 



3620 


As best I can tell about Judge Bork, I do not know whether he 
would go strictly by Stevens ’reasonable view, or he has a slightly 
looser reasonable basis standard than Justice Stevens has articulat¬ 
ed. 

But whichever one it may be, personally, I am concerned that 
neither the Justice Stevens’ standard nor perhaps the loosened 
Judge Bork standard would work to ensure what I call that most 
elusive birth right to equal protection under the law. 

And as you know, as a lawyer, a scholar yourself, that Bolling v. 
Sharpe is the case which said that segregation in the schools here 
in the District of Columbia was unconstitutional, and that was de¬ 
cided under the due-process provision of the fifth amendment. 

Judge Bork takes some issue with that approach, and so I just 
think that he gives so much flexibility to the issue of deciding what 
is reasonable and what is not reasonable, that I do not feel we 
would be protected. 

Senator Specter. Well, Judge Bork said that he agreed with the 
conclusion of the court in Bolling v. Sharpe. 

Ms. Martinez. With the conclusion. 

Senator Specter. He thought that the desegregation order was 
appropriate in that case. 

Ms. Martinez. Right. 

Senator Specter. Are you satisfied, generally, with the way the 
Court is interpreting the equal protection clause today? 

Ms. Martinez. I would have to say that yes, I think they are on 
the right track, but I think there are still so many undecided cases, 
and when I sit back and look at how Judge Bork approaches issues, 
it troubles me. 

Senator Specter. Do you think that Judge Bork would upset 
the—do you have something to continue there? Go ahead. 

Ms. Martinez. Yes. There was something I—there was an exam¬ 
ple I wanted to cite to you, if I may. 

In talking about the Craig v. Boren case, Judge Bork has suggest¬ 
ed that these issues about male-female, and drinking of beer trivia¬ 
lizes the Constitution, and he said after all, there are statistical dif¬ 
ferences between men and women. 

The thrust of the analysis has not been that gross, that big. It 
has been more fine-tuned: that you have to look at the particular 
person, not that women tend to be smaller and weigh less, but 
whether this particular woman who says she wants to do this par¬ 
ticular job can do it. 

And these are the troublesome problems that I have with Judge 
Bork. 

Senator Specter. The question that I was about to ask you was 
whether you thought Judge Bork would upset the balance or the 
current trend of the Court on equal protection. There has been that 
concern raised on the privacy issue, but I do not know that that 
concern has been raised on equal protection, if the Court seems to 
be reasonably harmonious in their conclusions. 

There are a great many concurring opinions. There were seven of 
them in Craig v. Boren, the case that you mentioned, but they get 
to the same result. They define the standard somewhat differently, 
so that there is a real issue as to whether Judge Bork would upset 



3621 


any balance which now exists, and as you describe it, generally sat¬ 
isfied with where the Court is on equal protection. 

Ms. Martinez. But I think he could upset that balance because 
there are still cases that are decided, not unanimously of course. 
Look at the Bakke case, for example, the affirmative-action case. 

And Judge Bork has given this committee no guidance on what 
he would do in the affirmative-action arena, saying that those sorts 
of issues could come to him regardless of what court he might sit 
on in the future. So I have that concern as well. 

Senator Specter. I regret that we do not have more time to dis¬ 
cuss these issues, they are very important and very deep, but my 
time is up and we thank you very much for coming. 

Ms. Martinez. Thank you, Senator. 

The Chairman. Thank you. Ms. Martinez, I am only going to 
take a few minutes of my 5 minutes. 

The poll-tax cases. If I understand what you are saying, that not 
only is the constitutional issue of the constitutionality of a poll tax, 
under any circumstances, something that you wonder about Judge 
Bork’s concluding, but that at a minimum, as I understand you, 
you are saying that his comments before this committee, and his 
comments prior to coming before this committee, demonstrate an 
insensitivity to what is reasonable and unreasonable in terms of 
encouraging or discouraging people to vote. 

We know from experience in my State, which was segregated by 
law, the mere fact that people had to go to a certain courthouse as 
opposed to being able to register in their communities, has a damp¬ 
ening impact upon their willingness to participate because they as¬ 
sociate so many things with certain courthouses. They are the 
same courthouses they were dragged to 20 years earlier, or 30 
years earlier. 

We also know that, in my State, and other States that were seg¬ 
regated by law, that anything that makes it more difficult for 
people to register to vote has a more profound impact upon minori¬ 
ties who already wonder whether or not they are welcomed in the 
process. 

I just spent a couple days down in the valley in Texas. I walk 
through homes. It is beyond my comprehension that people can live 
there. They are neat and they are clean because the people have 
such pride. No running water, no toilet facilities, no ability to have 
anything but canned foods, and sometimes not then. And I do not 
know what Judge Bork thinks or my colleagues think, but it is 
hard enough to get those folks to believe that there is a reason to 
vote in the first place. If on top of that you tell them you got to pay 
$5 to do it, I do not know how any reasonable man or woman could 
not conclude that that would have, at a minimum, a dampening 
impact—although the poll tax at the time was a dollar or a dollar 
fifty; today that would be $5 or thereabouts. 

How anyone could not understand that that would diminish, at a 
minimum diminish, participation of minority groups is beyond me. 
I guess that is more in the line of a Hatch statement than a ques¬ 
tion. We all are making statements a lot these days as we wind 
down. 

Is that part of your concern, or am I putting words in your 
mouth? 


3622 


Ms. Martinez. No, that is precisely part of my concern, and you 
phrased it much better than I possibly could. 

I have not used the word “insensitive” because it is just so value¬ 
laden. But what I have said is that unfortunately Judge Bork has, 
first, too cramped a view of what equal protection requires; and too 
uninformed a view not to know, as most people did, that these poll 
tax laws were passed to disenfranchise blacks, not to know that 
$1.50 in 1966 or $5 today will keep a person from exercising the 
birthright, the fundamental right of voting, is not the sort of 
person that I can repose my trust and confidence in to decide equal 
protection issues. 

The Chairman. Not necessarily because that person is mean-spir¬ 
ited? 

Ms. Martinez. No. 

The Chairman. Not because that person has a prejudiced bone in 
his or her body? 

Ms. Martinez. No. 

The Chairman. Because that person just may not know what the 
real world is like? 

Ms. Martinez. That is my worry. 

The Chairman. One of the reasons why, when I was asked prior 
to any nominee being sent up—and I was asked what type of nomi¬ 
nee; I cannot choose the nominee nor is it my right to choose the 
nominee—I indicated that I really think we are becoming awfully 
thin on the Court on practitioners. 

Ms. Martinez. I am happy to hear you say this. 

The Chairman. I am serious. One of the reasons why I had such 
great respect for Justice Powell, even though I disagreed with him 
from time to time, was that he was a practitioner in the real world, 
a pragmatist who understood how it worked. Intellectuals are won¬ 
derful on the Court. But I do not want the Court made up of nine 
intellectuals who have not been out there in the hurly-burly of the 
world and been involved. Not that Judge Bork has not been so in¬ 
volved. He has had tragedy in his life, and he has had difficulties, 
and he has overcome them and dealt with them with great class 
and sensitivity. 

But it seems to me that it is important that people know. I will 
just conclude by suggesting that we had a case with a nominee for 
a much less significant position a year or so ago, and it related to 
his unwillingness to understand that if the only place blacks could 
register in a certain State was a place where they had to walk over 
a bridge and to a courthouse where they used to have to go to the 
basement, that it was not surprising that older blacks would be 
afraid to or intimidated to go there. 

I think knowing those kinds of things is important for a Supreme 
Court Justice. 

At any rate, I am over my time. I yield to my colleague from 
Iowa, and then what we will do is we will break until 2:00 o’clock 
or thereabouts for the next panel of witnesses. 

Senator Grassley. Thank you, Mr. Chairman. 

I believe that you hinted that Judge Bork gave no guidance on 
his affirmative action reasoning. Maybe I can get you to give me 
some of your views on this very tough issue. 



3623 


Judge Bork’s opponents have criticized him for his opposition to 
affirmative action for minorities, although we have also heard tes¬ 
timony that it would be a mistake for us to conclude that his mind 
is made up on this issue. I would like to ask you a question about 
this subject. I would like to have you think of a Supreme Court 
Justice, how you think he might and should go about deciding a 
hypothetical affirmative action case. And, remember, Judge Bork 
was asked a lot of hypothetical cases that he had to respond to. 

Suppose that a company has one position open in its senior man¬ 
agement, and the only two applicants are a black male and a white 
female of equal qualifications. Let us assume that the company has 
met its goals for promoting women but not for blacks. So the com¬ 
pany decides to promote the black male in order to fill its quote of 
black promotions. The woman sues alleging that she had been dis¬ 
criminated against on the basis of race and sex. 

In your view, would the ideal Supreme Court Justice rule in 
favor of the woman and against the black male? 

The Chairman. You will be graded on this. 

Ms. Martinez. Well, first of all, you know, I take issue with one 
of the statements you made that the company is filling its quotas. 
Unless- 

Senator Grassley. That is what I did say. But in this particular 
case, you know, when there is- 

Ms. Martinez. As the Senator knows, in certain cases courts 
have allowed quotas where there has been a judicial finding of 
present impacts of past discrimination. Courts have approved the 
use of quotas. 

Senator Grassley. Yes. 

Ms. Martinez. So that I suppose in that case that is sort of the 
easy case. They have already filled the quota, and they have more 
leeway. And assuming these are equally qualified persons- 

Senator Grassley. Well, that is what I said. 

Ms. Martinez. I assume that was part of your hypothetical. 

Senator Grassley. Yes. 

Ms. Martinez. I do not see a difficulty with making that selec¬ 
tion. 

Senator Grassley. Then you are saying that they would find, 
that that ideal Supreme Court Justice would find in the favor of 
the woman over the black male? 

Ms. Martinez. No, over the black male is what I am saying; that 
there would not be a discrimination against her. They were both 
equally qualified. There was presumably, according to your fact 
pattern, a quota system in place after a judicial finding which had 
been met. 

Senator Grassley. Well, under the theory of affirmative action, 
is it not possible that black males one day will be required to give 
up the gains that they made in favor of women who comprise a 
much higher percentage of the populace, all involved with seeking 
to achieve proportional representation in the workplace on the 
basis of sex? 

Ms. Martinez. Under the theory of affirmative action, we will 
eventually be able to do without race-conscious policies. That is the 
hope. 

Senator Grassley. Well, true. 



3624 


Ms. Martinez. That the society will reach a point- 

Senator Grassley. I am not going to find any fault with that. I 
am asking you based on where we are today and based upon the 
situations we find ourselves in today. 

Ms. Martinez. I am sorry to say that where we are today is in a 
situation where we still have tremendous segregation of Mexican- 
American school children in the Southwest, in my home town of 
Los Angeles, in the valley that the Senator spoke about, and we do 
not have equal educational opportunities for these children, unfor¬ 
tunately, so that we do not yet have the kind of America that can 
overlook and ignore affirmative action plans and programs as a 
way of bringing in people who have been disadvantaged in the 
past. 

Senator Grassley. And that gets me exactly back to the point I 
am asking you about. Under this process that we are in, is it not 
possible that black males one day will be required to give up the 
gains that they have made in favor of women because women com¬ 
prise a much higher percentage of the populace, as long as we are 
trying to seek proportional representation in the work force based 
on sex? 

Ms. Martinez. I would dispute that we are trying to seek propor¬ 
tional representation based on sex. We are trying to reach an ideal 
where everyone will look at everyone regardless of race, creed, 
color, sex, et cetera. We are not there quite yet. 

Senator Grassley. You know, I wish that people that approach 
this issue were as reasonable as your statement. But we find people 
that are arguing quite the opposite and holding it against Judge 
Bork because of the views that he holds on exactly how to get to 
that ideal point that you just stated that you are hoping for. 

I have no more questions. 

The Chairman. Thank you. 

Before we adjourn, I would like to read a letter to the committee 
that I received that I have made available to the committee. The 
letter reads as follows: 

To Senator Joseph Biden: During the hearings being conducted by the Senate Ju¬ 
diciary Committee on the nomination of Judge Bork, some prominent lawyers who 
served in my administration have testified in favor of his confirmation. Just to 
avoid any misunderstanding, I would like for the members of your committee to 
know that I am strongly opposed to Judge Bork’s confirmation as an Associate Jus¬ 
tice of the Supreme Court of the United States. 

Like many other interested Americans, I have reviewed some of the key judicial 
rulings and scholarly papers of Judge Bork on the most significant and often contro¬ 
versial issues of our time, and I find many of his forcefully expressed opinions in 
contradiction to roy concept of what this nation is and ought to be. He has almost 
invariably sided with the most powerful and authoritarian litigant in the cases 
before him. This has been particularly troubling in his rulings that government 
forces have an extraordinary legal right to intrude on the privacy of individuals, a 
notion that has always been strongly opposed in our section of the country. 

Furthermore, as a Southerner who has observed personally the long and difficult 
years of the struggle for civil rights for black and other minority peoples, 1 find 
Judge Bork’s impressively consistent opinions to be particularly obnoxious. I re¬ 
member vividly the judicial debates concerning public accommodations, the poll tax, 
and affirmative action. Along with most other people in the South, I have appreciat¬ 
ed the wisdom and courage of lawyers and judges who finally prevailed on those 
issues in order to eliminate legally condoned racism in our country. It is of deep 
concern to me that Judge Bork took public positions in opposition to these advances 
in freedom for our minority citizens. 



3625 


Only recently, with the vision of a seat on the Supreme Court providing some new 
enlightenment, has Judge Bork attempted to renounce some of his more radical 
writings and rulings. It seems obvious that, once confirmed, these lifelong attitudes 
that he has so frequently expressed would once again assert themselves on the 
Court and have a deleterious effect on future decisions involving personal freedom, 
justice for the deprived, and basic human rights. 

I urge you and other Senators to reject this nomination. Sincerely, Jimmy Carter. 

Addressed to the Judiciary Committee. 

The hearing will adjourn until 2:15 p.m. Our first witness will be 
Rabbi William Handler, and then our next panel will be made up 
of John Clay and John C. Roberts. 

[Whereupon, at 1:19 p.m., the committee recessed, to reconvene 
at 2:15 p.m., the same day.] 

AFTERNOON SESSION 

The Chairman. The hearing will come to order. I apologize for 
the late start but we were voting on the floor. 

Our next witness is a very distinguished witness, Rabbi William 
Handler, the Union of Orthodox Rabbis of the United States and 
Canada. 

Rabbi, welcome. I appreciate your indulgence, and please begin 
at any pace you would like. 

Rabbi Handler. Thank you, Mr. Chairman. I am Rabbi William 
Handler, representing the Union of Orthodox Rabbis- 

The Chairman. Excuse me. I am sorry, I forgot to swear you in. 
Would you please stand to be sworn. 

Do you swear that the testimony you are about to give will be 
the whole truth and nothing but the truth, so help you God? 

Rabbi Handler. I affirm. 

The Chairman. Please proceed, Rabbi. Thank you. 


3626 


TESTIMONY OF RABBI WILLIAM HANDLER 

Rabbi Handler. Mr. Chairman, I am Rabbi William Handler 
representing the Union of Orthodox Rabbis of the United States 
and Canada, this country’s oldest rabbinical organization founded 
in 1900, representing over 600 rabbis and deans of Talmudic 
schools and seminaries, which serve over half a million Orthodox 
Jews in the United States and Canada. 

Before I begin, Mr. Chairman—[prayer in Hebrew]. 

Mr. Chairman, I would like to discuss something that has made 
me very angry about the way in which your staff has conducted 
this hearing, and my appearance here today. 

Before I begin, I received two telephone calls yesterday from a 
Melissa Nolan. The first call asked me my name, and the organiza¬ 
tion I represent. 

The Chairman. I beg your pardon? She mispronounced- 

Rabbi Handler. No, no. She asked me my name- 

The Chairman. Oh, I am sorry. 

Rabbi Handler [continuing]. And the organization I represent. 
Half an hour later she called me and asked me, and told me that I 
am to be here, I am going to be on the—I think she said the fourth 
panel. I am to be here today. She told me where to come and what 
time to appear. 

About an hour after that time, I received a call from the execu¬ 
tive director of our organization, Rabbi Hirsh Ginzburg, telling me 
that your—- 

Senator Thurmond. If you do not mind, speak into your micro¬ 
phone a little closer. 

Rabbi Handler. I am sorry. Rabbi Ginzburg told me that he had 
received a call from your top aide, Diana Huffman, explaining to 
him that due to a change in procedure I was not to appear today; 
there will not be any outside witnesses today; and I should submit 
a memorandum to the address which she gave Rabbi Ginzburg, and 
they will publicize it at some later date. 

We had spent a lot of time trying to get into this hearing and to 
make our views known, and to speak as citizens of this great coun¬ 
try which extends freedom of speech to all of its citizens—even to 
those who are religious. 

We are not second-class citizens. For this kind of shabby trick to 
be played on a reputable Jewish organization, to try to censor our 
views by telling us, falsely, a person in top authority controlling 
the appearances before this committee, knowing full well that she 
was lying, telling my executive director that I am not to appear be¬ 
cause of policy considerations, that is the most ugly thing I have 
ever seen in my life. 

I think, as a responsible chairman of a committee, an important 
committee that can decide the future of this country, you should 
fire your top aide for doing that, if you can confirm that that hap¬ 
pened. 

And I can say it, and Rabbi Ginzburg will be glad to tell you 
that, because he does not know who Diana Huffman is. He is very, 
very unknowledgeable. He did not get that name from the air. 

The Chairman. Well, I thank you very much. We will look into 
it. You are here. You are welcome. Now please testify. 



3627 


Rabbi Handler. Thank you, Mr. Chairman. 

The Chairman. Within 5 minutes, please. 

Rabbi Handler. Our organization is a rabbinical organization, 
and we ordinarily do not make political endorsements. However, in 
this case we are going to follow the example of the Agudath Israel, 
which publicized its memorandum to all of the Senators of this 
Committee, endorsing Robert Bork for the nomination to the Su¬ 
preme Court, based on the fact that he is not hostile to religion, as 
so many Supreme Court Justices have become lately, and he is 
willing to treat us as equal citizens with all other people in this 
great country. (See Figure 1.) 

Also because he is a person who understands the necessity for a 
virtuous, decent citizenry, and we feel comfortable that he will 
extend equal rights to all citizens, and that we will be able to have 
a good relationship with him in our dealings with the Government. 

I would also like to publicize the editorial in the “Jewish Press” 
which is also rather unusual, endorsing Robert Bork. The “Jewish 
Press” is the largest independent Jewish daily in the United States 
of America. (See Figure 2.) This reflects a very wide consensus in 
the Jewish community among traditional religious Jews in favor of 
this nomination. 

We are speaking about a Supreme Court nomination, and we 
should look a little bit into the Constitution which the Supreme 
Court administers. The framers who put together the Constitution 
had a very specific idea of what kind of people they made this Con¬ 
stitution for. They stated it clearly in the—their ideas, in the Dec¬ 
laration of Independence, at the convention, the Constitutional 
Convention. George Washington, in his Farewell Address, made it 
very clear, he looked to a virtuous citizenry that would regulate 
itself based on religious principle derived from the Bible. 

Because only in that way could they be free, and not have to 
impose strong restraints and police powers on them, because if 
they would not be self-disciplined, they would require a very strong 
police state. 

The belief in God was very clear. They believed that there would 
be a multi-denominational establishment of church in this country, 
and that there would be freedom of religion, not freedom from reli¬ 
gion. (See Figure 3.) 

And this multi-denominational pluralism would result in a civil 
religion which everybody could deal with on a consensus basis, and 
the consensus could be widened, as needed, as it has been to in¬ 
clude the Quakers, and right now they are talking about Black 
Muslims, and others. Anybody who does not threaten the stability 
of the country. 

It is clear, and they felt it was clear, that if the people did not 
remain virtuous, the country would not be able to maintain itself 
on a constitutional basis, and it would have to go totalitarian. 

Recent Supreme Court decisions have actively undermined this 
understanding of the framers of the Constitution, and recent deci¬ 
sions in the area of prayer, criminal rights, pro-abortion, liberal¬ 
ized pornography, have shown that the judges of the Supreme 
Court do not respect the original intent of the framers, which in¬ 
cluded the motto “In God We Trust” on the coinage; chaplains; the 


3628 


Supreme Court itself opens its proceedings with the words: “God 
save the United States and this Honorable Court.” (See Figure 4.) 

But the people who sit there do not believe that that really has a 
place. I think they should abolish that if they really believe that. 

Decent moral parents, as a result, especially single-parent fami¬ 
lies, find it very difficult to raise children in this inhospitable 
super-secular atmosphere that has been created as a result of the 
Supreme Court extreme separation of church and State which was 
never intended. (See Figure 5.) 

We endorse Robert Bork because he understands what the fram¬ 
ers meant. He respects it. (See Figure 6.) He does not want the 
police state, and that is why he wants to have a certain modicum 
of civility in our public life, a certain civil consensus idea of reli¬ 
gion, and people who do not believe in God are best protected that 
way. 

Because if nobody believes in anything, what rights has anybody 
got? 

Therefore, Mr. Chairman, we urge you very strongly to affirm 
the nomination of Robert Biork to the Supreme Court. Let us ele¬ 
vate Robert Bork, to have some long overdue honesty and common 
sense, which he has demonstrated in the interpretation of our basic 
law, to avoid legislation by a body that is not a legislative body, 
and to let you do the legislating, Mr. Chairman, based on a consen¬ 
sus of the people and what the people want you to do. 

If we want amendments to the Constitution, we should not 
impose them by “gut reaction,” as Mr. William O. Douglas has said 
he does when he decides a case. 

Let us have amendments by a consensus of the people. If we do 
not like religion, let us make an amendment. “Religion will be for¬ 
bidden in public.” Now let’s put it on the table. Let’s not try to 
sneak in the back door. 

If we continue the biblically-based traditions of our Founding Fa¬ 
thers we shall earn the continued blessing of God Almighty, and 
God Bless America. 

The Chairman. Thank you, Rabbi. 

I want you to know I apologize for any confusion. You are always 
welcome here, and we welcome your statement. 

I have only one very brief question for you. 

How do you know that Robert Bork disagrees with the Supreme 
Court on matters of religion? I assume that you mean prayer in 
school, and public utterances of religious activities. 

How do you know he disagrees with a Court that you feel has 
become overly secular? 

Rabbi Handler. That is a good question, Mr. Chairman, and I 
will reply by saying that, in my opinion, the reason that the Court 
in recent times has taken the turn it has, away from the original 
intent of the framers, is precisely because we have become a secu¬ 
larized society. 

I have submitted to this committee a speech by Professor Peter 
Berger of Rutgers University, the foremost professor of religion in 
this country. 

The Chairman. We will put the entire speech in the record, as if 
read. (See Figure 7.) 



3629 


Rabbi Handler. Well, he has made a speech and what he says, 
basically, is this. That in the secular atmosphere we have today in 
this country, Mr. Chairman, the phrase “One nation under God” is 
no longer credible in public. People sort of get uneasy. 

This has become, increasingly, a hedonistic society that wants to 
throw off all constraints. In our schools we teach sex education, in¬ 
cluding homosexuality as an alternative life style, and we encour¬ 
age children to try it. (See Figure 8.) 

Planned Parenthood encourages it in their curriculum. The Na¬ 
tional Education Association encourages it. And they control the 
schooling of the children. 

In the values education portion of the curriculum we talk about 
stealing as being maybe good, maybe bad—you decide. 

The Chairman. In the interest of time, since my time is going to 
run out, can you tell me, though- 

Rabbi Handler. Quickly, I will get to the point. 

The Chairman [continuing]. Why do you think Judge Bork dis¬ 
agrees with the Supreme Court? 

Rabbi Handler. Okay. Because he says the Supreme Court got 
away from original intent because it was constrained, it could not 
meet the new needs of this force in society by going with original 
intent which was religiously based. 

When Judge Bork says that he agrees with the framers, he is 
saying that he wants to look at the Constitution and understand it 
the way they did, and that is precisely why people who are very 
secular oppose him, because they feel that. 

The Chairman. Well, before this committee he said he has taken 
no position on prayer in school. He has implied that he might be 
able to support the abortion decision before the Supreme Court. He 
said those things, as did witnesses speaking on his behalf. That is 
why I am confused. 

He said before us, that he has taken no position on prayer in 
school. As a matter of fact he vigorously denied having been one 
who would support prayer in school. 

He has further implied that there may be a way in which you 
could reach the conclusion the Court has, allowing women to have 
abortions. 

And two of his most prominent supporters both testified that 
they thought—although they said they could not speak for him— 
they thought he would be supportive of a decision based under the 
Constitution to allow women to have abortions. 

So, obviously, you would not be here if you thought he supported 
abortion, and you would not be here, I suspect, if you thought he 
opposed prayer in school. 

So I am curious what you know about him that he has not told 
us, or his supporters have not told us. 

Rabbi Handler. I have submitted in the record a memorandum 
from Yale Law School by Judge Bork, in which he says, “Contrary 
to assertions made, homosexuality is obviously not an unchange¬ 
able condition like race or gender. Individual choice plays a role in 
homosexuality.” (See Figure 9.) 

He obviously has the old traditional viewpoints. He is not that 
kind of liberal whose mind is so open that his brain falls out. He 



3630 


has common sense. He has common sense. I think the hallmark of 
this mam is that he will not allow you to program him. 

That is precisely what he said about abortion. We have in the 
Talmud such rules that if the people have already accepted some¬ 
thing, there are now difficulties in going back to status quo ante. 

You cannot just make a U-turn and drop everything. You have 
got a society, you have got people, you have got things done. 

I think that is precisely his strength. Everybody can talk to the 
man and they know he is intelligent enough to understand what 
you are saying in the first place, and then he is the type of person 
who can take these viewpoints and try to give everybody something 
that he can go home with, so that you do not feel shut out of the 
system, as we have felt increasingly as decent religious citizens. 

We are shut out of the system under the Supreme Court deci¬ 
sions. The public square has become hostile to decent people who 
want to raise children in this society. 

A black woman who reads the Bible and tells her son, “You 
mind your teacher now,” and her son will come home and say, “My 
teacher said I should be a homosexual and it’s just as good as being 
married. In fact I don’t even have to get married. He said it in a 
sex education course. And in values education he told me stealing 
is not necessarily bad.” 

So now she says, “Don’t mind the teacher.” Now what is she to 
do? She is stuck. And she reads her Bible, and everybody is under¬ 
mining her all the time. 

How do you expect to get a decent citizenry that way? This is 
criminal. 

The Chairman. I appreciate your testimony. My time is up. I 
yield to my colleague from South Carolina. 

Senator Thurmond. Thank you, Mr. Chairman. 

Rabbi Handler, we are glad to have you here. 

Rabbi Handler. Thank you, Senator. 

Senator Thurmond. How many Jewish people would you say 
your organization represents? 

Rabbi Handler. Well, we represent rabbis, Senator Thurmond, 
over 600 rabbis, but our organization speaks to over half a million 
orthodox Jews. 

Our past president, Rabbi Moses Feinstein, was the number one 
authority in Jewish law in the entire world. 

Senator Thurmond. Over half a million- 

Rabbi Handler. His decisions were binding all over the world. 

Senator Thurmond. Over half a million? 

Rabbi Handler. Yes. 

Senator Thurmond. I am glad to see you are in favor of confirm¬ 
ing Judge Bork. I guess you have studied, more or less, his life and 
the issues at stake here, and other things which have caused you to 
reach that conclusion. 

I just want to ask you one question, without taking a lot of time. 
Do you feel that Judge Bork possesses the qualifications of the kind 
of man we should have on the Supreme Court, such as integrity, 
and judicial temperament, professional competence, courage, kind¬ 
ness, dedication? 

Rabbi Handler. Senator Thurmond, I am not a lawyer and you 
would need a lawyer to answer that question. 



3631 


I support him because he seems a man of consummate common 
sense and reasonableness. I have seen his decisions are precise. He 
is not a demagogue who makes a very abstract statement and tries 
to force everybody into—that square hole into the round hole— 
square peg into a round hole. 

He looks at each case and decides it on its merits, uniquely. That 
is a sign of a sharp mind. It is something we do as Rabbis, because 
you know, when someone comes to us for a chicken and asks is it 
kosher or not, we take a look who is bringing the chicken. 

If it is a poor man, and he just spent his last dollar on the chick¬ 
en, we will spend an hour figuring out if we can find something 
that is going to make that chicken kosher. 

But if he is a wealthy man and the chicken does not look so good, 
we say, sir, to honor the Lord, throw away the chicken, show that 
you are a sport and that you care for God, and that is your sacri¬ 
fice. Buy yourself another chicken. 

The Chairman. You sound like a Democrat. [Laughter.] 

Senator Thurmond. Well, we have not asked you whether you 
are a Democrat or a Republican. 

The Chairman. And I am not asking now. 

Rabbi Handler. Sir, I am a Jew. 

Senator Thurmond. Or an independent. 

Rabbi Handler. I am a Jew. I am a God-fearing Jew. 

Senator Thurmond. And regardless of what party you are in¬ 
clined to, you do support Judge Bork? 

Rabbi Handler. We support Judge Bork on the basis- 

Senator Thurmond. And you do it because I understand you say 
his common sense, and because you do not think that he is a dema¬ 
gogue, and because you think he believes in God and is a good 
man, and therefore you support him. 

Is that the essence of it? 

Rabbi Handler. We feel he speaks for the mainstream of Ameri¬ 
cans. He speaks as a real person who every average American can 
relate to and understand. He understands the people. He is not an 
elitist. 

Senator Thurmond. Thank you very much. 

The Chairman. Senator Leahy. 

Senator Leahy. Thank you, Mr. Chairman. 

Rabbi Handler, some of the congregations which your members 
serve have Jewish parochial schools, do they not? 

Rabbi Handler. Absolutely, sir. We believe in that very strongly. 
It is the survival of our people. 

Senator Leahy. All three of my children attended parochial 
schools, Catholic parochial schools, and I was very pleased with 
that, and because of that I am particularly interested in a couple of 
Supreme Court cases. 

One was Pierce v. Society of Sisters. It held that States could not 
require all children to attend public schools. In other words, the 
State could not say you cannot attend parochial school, you have 
all got to attend public school, something that any of us interested 
in parochial schools would favor, at least that opinion. 

The second was Meyer v. Nebraska, and it held that States could 
not forbid the teaching of foreign languages in a school. In other 
words, the State could not tell a parochial school, or any others, 



3632 


you cannot teach a foreign language, you cannot teach Hebrew, 
you cannot teach French, Italian—whatever. 

Now Judge Bork criticized both of those decisions as being 
wrongly decided. Now both those precedents would seem really es¬ 
sential to protect the Jewish parochial school, to protect the 
Roman Catholic parochial schools that my children attended. 

Does that trouble you, that Judge Bork questioned the constitu¬ 
tional basis of those decisions? 

Rabbi Handler. No, it does not, sir, because I do not believe that 
that is the case, exactly as you have stated it, because the Agudath 
Israel of America has a Committee on Law and Public Procedure 
which is composed of lawyers, and in taking their position on 
Judge Bork, they are acutely aware of these things, and they have 
stated that Judge Bork is not hostile to religion and to religious 
schools. 

Senator Leahy. Rabbi, just to make sure you understand my 
question. I am not suggesting he is hostile to religion or religious 
schools. I do not know what his views are on religion and it is im¬ 
material to me what his views are on religion. 

What is very material to me are his views on the law. We have 
had a lot of areas where he has discussed his opposition to a par¬ 
ticular Supreme Court case, where none of us—supporters or oppo¬ 
nents—would ever ask him what his personal views are in the 
area. I do not care what his personal views are on abortion. 

I do not care what his personal views are on contraception. I do 
not care what his personal views are on prayer in school, or paro¬ 
chial schools. 

But I do care about his views on the law. These are two cases 
that are very supportive, in fact essential to the maintenance of pa¬ 
rochial schools in this country. Both of them he has criticized on 
the law. 

Does that trouble you? 

Rabbi Handler. Well, the only thing I could do is tell you a little 
anecdote about our past president, Rabbi Moses Feinstein, who was 
the world’s most prolific writer of legal opinions, I guess similar to 
Judge Bork. (See Figure 10.) 

And the most widely misunderstood person, because he wrote so 
much, and very few people knew what and understood what he 
meant. You had to be a very sharp legal scholar to understand 
nuance and application. 

You only get one in a generation like Rabbi Feinstein. You know, 
when somebody tells me that somebody did such and such, I tend 
to take it with a grain of salt until I see the details of the decision. 

You are telling me something which does not make too much 
sense to me, and based on my understanding that Judge Bork is a 
sensible person, and agrees with the original intent of the framers, 
which was to establish religiously based schools, because there was 
no public-school system until Horace Mann established them in the 
late 1800’s. That sounds very—it does not ring true. 

Senator Leahy. Even though he has criticized them as being 
wrongly decided? 

Rabbi Handler. I do not know what his criticism was, but it does 
not ring true according to my understanding of the framers- 



3633 


Senator Leahy. And one other thing. You have talked about your 
discussions with a member of Senator Thurmond’s staff and a 
member of Senator Biden’s staff when you first started off here 
this morning. 

Rabbi Handler. It was not a discussion. It was simply a tele¬ 
phone conversation that I received. 

Senator Leahy. I understand. A telephone conversation with, 
first, a member of Senator Thurmond’s staff, and then one of Sena¬ 
tor Biden’s. 

We all welcome you here, you understand that, but you said one 
thing which I assume was perhaps a tad overstated. You stated, 
you said this is the “worst thing” you have seen in your life, or 
words to that effect. 

Rabbi Handler. Well, that was, I think, hyperbole. 

Senator Leahy. I thought perhaps before you went back to your 
congregation, you might want a chance to note that that is not the 
worst thing you have seen in your life. 

Rabbi Handler. I think it was an attempt to manipulate this 
process, I think it was an unfair attempt, and I think it is the kind 
of thing that is shameful, and does not belong in the Congress, and 
I still think she should be fired. 

Senator Leahy. Rabbi, you are here, you are here testifying, and 
we have had, I think—and I would say this as a compliment to the 
Chairman, and a compliment to the ranking member—to both Sen¬ 
ator Biden and to Senator Thurmond. We have had a very, very 
strong representation of people speaking for Judge Bork and people 
speaking against Judge Bork, and I think that they have all been 
given ample opportunity, as well as a number of others who have 
been able to submit material for the record, both through support¬ 
ers and opponents of Judge Bork. 

I think the general consensus around here is that these are 
about the fairest hearings, certainly that I have seen in 13 years 
here. 

Rabbi Handler. Well, I will leave that stand as is. 

The Chairman. We will look into it, Rabbi- 

Rabbi Handler. Thank you very much. 

The Chairman [continuing]. And I will get back to you. But now, 
let me yield to my colleague from Wyoming. 

Senator Simpson. Thank you, Mr. Chairman. It is good to have 
you here, sir and- 

Rabbi Handler. Glad to be here. Thank you. 

Senator Simpson. I will add, I have a little phlegm in my throat 
there. 

And I think that is cleared now, sufficiently. 

There have been so many groups, on both sides, that have 
wanted to testify here, that it would be chaotic to try to sort 
through it. It really has been extremely heavy, and I know that the 
Chairman would not, and I know Diana Huffman would not inten¬ 
tionally do anything that would be unattractive, or biased, or total¬ 
ly politically. The searchlight is on them, and I think they have 
handled that very well, ana they have met our requests for various 
witnesses, and knowing Diana as I do, I would hope that she 
would—and knowing her, she will probably contact you personally 
and give you the information as to what did happen there. 



3634 


Well, yours is a powerful statement, and it is so helpful to have 
that because yesterday, we actually had—I think it was yester¬ 
day—a person really testifying that Judge Bork was anti-Semitic. 

I mean, let’s get right down to the nub of it. That is the appall¬ 
ing thing about the hearings. They are not just going for shaded 
words in this hearing. There is no subtlety in this. He is a racist. 

He is a poll taxer. He is a sterilizer. He is a fink. And there is no 
munching around, no mincing of words, and that is, I think, a dis¬ 
turbing thing when, in every other breath that they utter at that 
table, it is about what a remarkable intellect and a remarkable 
man he is. You cannot have it both ways. He cannot be all that. 

And he cannot be so polarized and so frightening a figure, an 
ogre of the first proportion. 

Rabbi Handler. Have they accused him of being a member of 
the Nazi Party yet? 

Senator Simpson. I am sorry? 

Rabbi Handler. Has anyone accused him of being a member of 
the Nazi Party yet? 

Senator Simpson. I do not think that creativity has come up. But, 
you know, I do not mean to be a smart-aleck, but it is almost all 
that. I mean, literally, it is close to that with some people who are 
speaking about him, and I think that is very unfortunate, and I 
think it will backfire. 

And my sense is that it will, and it will on the floor of the U.S. 
Senate, because 86 other players will be in this game, and they are 
going to say: Is it true what we heard about Bork? 

And somebody is going to get up and say it is the most grotesque 
distortion you can ever imagine, and we will tell you why. And 
then we will go sorting through the cases. 

But anyway, we, as I said, received testimony from a minister 
who said that Judge Bork was insensitive to the concerns of a 
young Jewish student who found himself in an uncomfortable reli¬ 
gious conflict with the traditional Christian practices of his class¬ 
mates. 

Judge Bork just totally denied any insensitivity of the nature re¬ 
ported. 

Do you know of anything, in what you know of Judge Bork, or 
your group of Rabbis in the United States—any notion whatsoever 
of anti-Semitism, or religious intolerance, or insensitivity on behalf 
of this nominee? 

Rabbi Handler. No, we do not, Senator, and I think it is ridicu¬ 
lous to even discuss such things. No serious person would entertain 
such a notion. 

Senator Simpson. Well, there are serious persons that bring it 
up. They asked to bring this man in here to testify to that effect, 
and were hoping that it would have some impact on one thing 
only—that he was anti-Semitic. 

Rabbi Handler. Well- 

The Chairman. Well, if the Senator will allow me to interrupt. I 
believe the only reason he was asked- 

Rabbi Handler. Excuse me just one second. Just let me 
speak- 

The Chairman. I understand that, but I am the Chairman of the 
committee. 



3635 


Rabbi Handler. I am just saying that—I just want to make one 
point. 

The Chairman. If you will just let me finish, you can make all 
the points you want. I just want to clarify one thing. You will have 
plenty of time. 

The reason why the witness was asked by a member to be 
brought in was that there had been an account in the press relat¬ 
ing to whether or not Judge Bork was for, or against prayer in 
school, and whether Judge Bork was in fact, did or did not respond 
to a discussion of prayer in school in a way that was recounted in 
the press, and contradicted by a participant there. 

That was the reason. Not to in any way accuse Judge Bork of 
being anti-Semitic, nor did the witness accuse him of being anti-Se¬ 
mitic. But having said that, add two more minutes to that time be¬ 
cause I have taken some time. 

Rabbi Handler. Thank you, Mr. Chairman. 

I think when you get into these very emotional discussions, and 
of course religion and politics traditionally have been areas that a 
good businessman never discusses because it is so emotional. 

By definition it is an emotional discussion. And when we talk 
about emotions we talk about love, and we know that love is blind. 
And hate is blind, too. And when someone hates, he says some 
things that, upon further reflection, he may well find he is 
ashamed of, and I think that is probably the case in that instance. 

Senator Simpson. Well, I just know that with the fine fertile 
ground of distortion that I have seen in my 2 weeks here, that the 
Chairman’s explanation of that may be true, but then it went fur¬ 
ther than that, and something was said, don’t you realize that that 
young man was very hurt, or sensitive, and Bork was alleged to 
have said, “He’ll get over it.” A very flip statement, a very insensi¬ 
tive statement was intended to be portrayed. 

It had all the smatterings of what I have suggested, and- 

Rabbi Handler. Heaven help us if some one would examine my 
statements. I just got caught up by the Senator before, Senator 
Leahy. He corrected me. I would not want to be examined- 

Senator Simpson. He will again in just a minute. 

Rabbi Handler. I would not want to be examined and scruti¬ 
nized by God on Yom Kippur for the statements I have made all 
year. 

Senator Simpson. Well, maybe that is where we miss our calling 
here. I think we think we are judges. I am guilty of that. And the 
fourteen of us are somehow judges. And I guess that is what we 
are, but there is one final judge in our lives, and that is a great 
part of your belief, and mine. 

Well, just another thing to kind of put it in perspective. That it 
was Judge Bork who protected a young Jewish member of the bar 
in Chicago, a fledgling associate of that firm. That was the clear 
testimony of Mr. Howard Krane, I believe was his name, and the 
whole indication we have is sensitivity to other religions. Even 
though he himself is not Jewish, his first wife was Jewish. 

His three children are of the remarkable blend of that faith, and 
that is the way that is. So maybe we will not have any more discus¬ 
sion about that. That would be, it seems, very logical and very 
honest. Thank you so much. 


88-37A 0-89-30 



3636 


Rabbi Handler. Thank you. Senator. 

The Chairman. Thank you. The Senator from Alabama. 

Senator Heflin. I do not believe I will ask any questions. 

The Chairman. The Senator from Iowa. 

Senator Grassley. Mr. Chairman, will you pass over me, and 
then come back to me? 

The Chairman. The Senator from Pennsylvania. 

Senator Specter. Thank you very much, Mr. Chairman. 

Rabbi Handler, you have testified that you would like to see 
more of religion in our society. 

Could you amplify, just a bit, what you would like to see occur 
under your approach. 

Rabbi Handler. Yes, of course. I think that I would like to see 
what George Washington recommended, and I will use his termi¬ 
nology because he said it so well. “Reason and experience—in his 
Farewell Address. 

“Reason and experience both forbid us to expect that national 
morality can prevail in the exclusion of religious principle.” 

There has to be some absolute standard that a parent can point 
to in teaching a child. The family is the key to this country, and 
bringing up children is the key to the future of the country. 

And you cannot bring up a child in a relativist atmosphere. 
There has to be some standard, and the only standard that works, 
that we know of, that the Founders intended, is the standard of 
Biblically-based religious standards. 

Now it does not have to be a specific religion, because according 
to Professor Berger in his address, the Founders established a 
multi-denominational pluralistic religion in this country. There is 
an established religion of that kind. 

They intended all the religious faiths to fill in what the Constitu¬ 
tion left out, which is religious standards, and they wanted to ac¬ 
tively help all of these denominations, equally, across the board. 
Help pay for their schools, because this was in the national inter¬ 
est. 

And the civil religion that came about from this coming together 
of all these different religious strands, certain basic ideas were af¬ 
firmed, that you will get married, you will have a family, you will 
have children. You will bring up these children as upright and 
good citizens. You will teach them self-control. 

You will teach them to honor other people, and to tolerate people 
of other religions. And in that sense it is important that we talk 
about God. 

We have to say, in the Pledge of Allegiance: “one nation under 
God.” We should say that constantly. We should not forget that 
there is a Boss in this world, and we have a final accounting, and 
this is what restrains us, for without that, we do whatever we 
please, and what we please is normally taking advantage of other 
people and putting them down. 

Senator Specter. Well, Rabbi, when you articulate the goals of 
tolerance and morality, there is obviously no disagreement. The 
first amendment has two ideals when it comes to religion. One is 
free exercise, and you have commented about that, that the fram¬ 
ers wanted everybody to be able to choose their own. 



3637 


The other concept is a concept against establishment. Do you 
think that it is appropriate for the Government to play a role in 
the establishment of various religions? 

Rabbi Handler. I will repeat what I said. The Government has 
to affirm that God rules the world. It is the only way. The alterna¬ 
tive is, no one rules the world, you do what you please, and that is 
the beginning of a police state. That is what Weimar, Germany was 
before Hitler. They had—I notice there is a revival of “Cabaret” 
now, in a more risque version, where there is androgenous people, 
homosexuals. Nietzsche. Max Weber’s philosophy. Heidegger. Val¬ 
ueless nihilism. This was Germany before Hitler, and many people 
do not realize that Hitler won the election with the votes of decent 
family people by promising them that he would bring order out of 
this moral chaos that was just turning Germany into a slime, 
where nobody knew what was right or wrong any more. 

Barbara Tuchman just commented in the New York Times 2 
weeks ago, in her article about the fall of America—something to 
that effect—that nobody knows what right and wrong is any more. 

Allan Bloom in his new book talked about that. He is a professor 
in the Ivy League for 30 years. They are going to pot. 

Senator Specter. Well these are very weighty subjects, and I do 
not know to what extent my question really bears on the nomina¬ 
tion of Judge Bork, but the considerations which we have before us 
here really turn more on allowing religion to have a free exercise 
to encourage people to believe in God, and to believe in morality as 
opposed to having the Government play an active role. 

And the constitutional doctrine which has been established is 
very forcefully against, under the establishment clause, against 
having the Government play any role in the establishment of any 
religion. 

Rabbi Handler. That is not what Peter Berger says. Peter 
Berger says it is not freedom from religion; it is freedom for reli¬ 
gion. 

A multidenominational, pluralistic establishment is what the 
framers put down. They could not envision a society of virtuous, 
self-regulating people without the belief in the Bible—they couldn’t 
have a free society, they would have had to establish Soviet Russia, 
a police state, to keep people from tearing each other’s throats out. 

Senator Specter. Well, Rabbi, I did not expect to get too far on 
this conversation in 5 minutes, and I have not been surprised. 
Thank you. 

The Chairman. The Senator from Ohio. 

Senator Grassley. Rabbi, first of all I didn’t hear your state¬ 
ment, but it’s a pleasure to have you here, and I particularly ap¬ 
preciate the forceful statement you just made to Senator Specter in 
response to Senator Specter’s questions and dialogue. 

Are you, as a member of a minority religious group, concerned— 
or maybe some people would even use the word “fearful”—about 
Judge Bork’s views on separation of church and state and the free 
exercise of religion? 

Rabbi Handler. I’ll tell you a story about the Baal Shem-Tov, 
who was the founder of the Hassidic movement. He was once trav¬ 
eling in a wagon with a Christian driver, and they passed a crucifix 
on the comer, and the driver did not cross himself, as was the 



3638 


custom in those days. And the Baal Shem-Tov said: get me off of 
this wagon, who knows what that man is going to do to me? 

Senator Grassley. Are you frightened by any of Judge Bork’s 
views as he stated them, as opposed to what people have said his 
views might be on civil rights? 

Rabbi Handler. On civil rights, I believe the civil rights battle 
has been won by black people in this country; they are treated as 
equal citizens, they are considered equal citizens, and I don’t think 
there is any argument in that area any more. 

The only civil right that they don’t have and that is being denied 
to them—and it’s perhaps more important than all the rights put 
together—is the right to have an intact family structure, which is 
the key to their success. The terrible tragedy of the broken black 
family, which Senator Moynihan has documented in his report 
“Beyond the Melting Pot,” is what’s killing the black community 
in this country. I have spoken before about the black woman who 
reads the Bible. 


I had opportunity many years ago to found a coalition of anti¬ 
crime groups, the New York Anti-Crime Coalition, and in pursuit 
of people to join me I went to the Baptist Ministers Conference in 
Bedford-Stuyvesant, and although there was one black minister 
who got up and said “We don’t want no Rabbi talking to us here,” 
he was put in his place by the overwhelming majority of decent 
ministers, and they told him, well, we do want a rabbi to talk to us 
about crime. And, believe me, some of the things that they pro¬ 
posed were Draconian compared to anything you’ve heard about; 
they wanted to just machine-gun the drug peddlers on the corner 
without any due process. 

I also had occasion to speak to the African Methodist Episcopal 
Ministers Conference in Harlem. Their problem is, in the black 
community, that the family is broken, the welfare system encour¬ 
ages kicking out the husband because there’s more money if the 
husband is gone; the woman is all alone to take care of the chil¬ 
dren; she sends them to school, and the school teaches them that 
the Bible is old-fashioned and whatever your mother taught you, 
forget about. And they fall prey to the drug dealers on the corner. 
They don’t have anything to fall back on. 

Society is not affirming the values that the decent black people 
want to give their children. And that’s a tragedy. And black 
progress is held back by the fact that they can’t form a stable—I’m 
not saying all—many of them, a very large proportion cannot form 
a stable family on which to bootstrap themselves into prosperity 
and to bring themselves up in the world, because they constantly 
have to start from point zero with broken homes. (See Figure 11.) 

Senator Grassley. I think maybe from the standpoint of your po¬ 
sition, though, as a member of a religious minority, and as civil 


rights of religious people in the world sometimes are violated, is 
there anything in Judge Bork’s views that you feel frightened by? 

Rabbi Handler. I think in understanding Judge Bork, you have 
to understand that he’s a little bit like me: he’s flamboyant in the 
way he speaks. And that’s really the secret of his success with his 
students. He speaks very’ sharply and he likes to draw sharp con¬ 
trasts to make a point, a debater’s point. And sometimes when we 
are engaged in debate, we play devil’s advocate. 



3639 


I think it’s unfair to take a man and take some positions that 
he’s done to make points and say that this is the man. My reading 
of him, where I’ve had occasion to look into his words, have been 
very subtle. This Yale memorandum, which I suppose he dashed off 
very quickly, because it’s a memorandum, on homosexual business 
in Yale University and his opposition to that, to legitimizing it 
through faculty activity, shows a great subtlety. In fact, in one 
paragraph he summarizes what our own Agudath Israel takes 
about 10 pages to say (See Figure 12); he gets to the heart of it in 
one paragraph while dashing it off. That shows a very subtle, 
sharp, incisive, careful mind. And I don’t regard such a person as 
threatening in any way. I am very comforted by that. 

Senator Grassley. Mr. Chairman, my time is up. 

The Chairman. Senator from New Hampshire. 

Senator Humphrey. Thank you, Mr. Chairman, and Rabbi Han¬ 
dler. We are very glad that you are able to come. It’s refreshing to 
hear someone who speaks so plainly. We’ve heard a lot of very so¬ 
phisticated law professors and others, but it is truly a relief to hear 
someone speak plainly. And I think you’ve addressed a lot of the 
heartfelt concerns of all Americans, not only of your own commu¬ 
nity but of all Americans who yearn, as you say, to raise decent 
children. I certainly agree with you in your assessment that, as you 
put it, the public square has become hostile to decent citizens, 
whether it’s the television fare which hourly, day after day, por¬ 
trays depravity as normal and commonplace, or whether it’s the 
courts—the judges, I should say—who find yet new rights for crimi¬ 
nals such that adequate law enforcement is often lacking in our 
communities. You are right, I believe, that the public square has 
become hostile to decent citizens trying to raise decent children. 

Some of the witnesses who have appeared before us in opposition 
to Judge Bork are people who believe that judges ought to read the 
Constitution expansively. For example, some of these witnesses 
suggest that there are no constitutional grounds for laws which 
make unlawful prostitution, that prostitution laws, duly passed by 
the elected legislatures, ought to be struck down because they 
invade privacy, for example; and likewise laws that legislators have 
duly passed which make unlawful the use of illicit drugs ought to 
be struck down, because that is another area that is protected by 
the privacy which they claim is required, expansive privacy which 
they claim is required by the Constitution. 

So you are very much on target when you assess this, as I believe 
you have, when you assess the battle over this nomination as at 
least in part a battle for bringing decency back into the public mar¬ 
ketplace, because the kinds of decisions that judges render, the 
kind of approach they take to their responsibility as judges, deter¬ 
mines whether or not the elected representatives of the people 
have a great deal to say about the climate in the public square. If 
we have another judge—it certainly wouldn’t be Robert Bork—but 
if ultimately this vacancy were to be filled by yet another judge 
who believes in this expansive power of judges to insert their own 
values into their judging decisions, into their decisions—if we have 
more judges who believe that they are entitled and required to 
insert their own values into their judicial opinions, then the efforts 


3640 


of legislators to maintain some semblance of decency in this coun¬ 
try will be further defeated. 

So I think you are quite right in the way you approach this. 

By the way, you might be interested in knowing, Senator Leahy 
raised the subject of decisions on which Judge Bork has comment¬ 
ed—they were decisions made before he reached the bench, but 
nonetheless he has commented on them. And one of them was 
Meyer v. Nebraska, which involved the striking down of a State 
statute forbidding the teaching of subjects in any language other 
than English. Now, Judge Bork was critical of that decision, but 
not of the result; it’s not as though he favored the law. What he 
objected to—and this is an important distinction in this case and in 
so many of the cases which have been used to criticize Judge 
Bork—not that he didn’t favor the result, the outcome of that deci¬ 
sion; he disfavored the process by which the courts came to that 
decision, seeing in that process an interjection of the values of the 
judges as opposed to the true meaning and intent of the Constitu¬ 
tion. 

Rabbi Handler. I’d like to comment on that. You see, there’s a 
problem that a judge has, and we, Talmudic scholars, are really 
lawyers in our own community—we have a problem. If you are 
going to get the result you want, you want to get the result very 
badly, you want to make that chicken kosher, but in the process 
you are going to toss out the whole Bible, have you really made a 
good trade-off? Sometimes you tell the man, look, buy yourself an¬ 
other chicken—but we can’t throw the Bible out of the window. We 
just have to stand on principle. 

I think what Judge Bork is saying is that you have to honor the 
framers, because that’s the mooring, the anchor that this country 
stands on. 

Senator Humphrey. Yes. 

Rabbi Handler. If you want to get a good result and just toss the 
whole thing out the window, what’s to stop the next guy, who may 
be a closet Nazi, from putting in his values? You have no reference 
point any more, you are lost. 

Senator Humphrey. Exactly right, no reference point. And no 
one suspects that any Nazis will ever get through the Senate and 
be confirmed to the Supreme Court or to any part of the federal 
judiciary, but the fact remains, the historical fact remains, that the 
Court has made some awful decisions, oppressive decisions, affect¬ 
ing civil rights and human rights, when judges resort to inserting 
their own values in place of a careful and faithful reading of the 
Constitution. That is all Judge Bork pledges, a careful and faithful 
reading of the Constitution. He pledges he will not interject his 
own values. I find that reassuring. 

But many of those who oppose him do not; they prefer judges 
who are subjective and who interject their own values into their 
decisions. That’s dangerous, as Dred Scott showed us, as Lochner 
showed us, and many decisions which have gone against the tradi¬ 
tion of civil rights in this country. So it works both ways. 

Rabbi Handler. Well, if the Constitution needs updating, there’s 
a process for that; it’s the amendment process—it works. 

Senator Humphrey. Exactly. Thank you, sir. 



3641 


The Chairman. Thank you. Rabbi, thank you very much; it’s a 
pleasure having you with us. 

Rabbi Handler. Thank you, Mr. Chairman. 

[Aforementioned material follows:] 



3642 


“JEWISH PRESS 

^ THE LARGEST INDEPENDENT ANGLO JEWISH WEEKLY NEWSPAPER 

Copyright *1987 The J ewish Press Inc. '7W» Mt Thy Wyy OLrd That I May Wo Ik I* Thy Truth' P^hn^BtTl^ 

VOL. XXXVII No. 39 WEEK OF SEPTEMBER 2.7 TO OCTOBER 1. 1987 2 T1SHREI 5 


Agudath Israel Tells U.S. Senate 
To Confirm Judge Bork 


Against the background of the ongoing Senate hear¬ 
ings on President Reagan's nomination of Judge 
Robert Dork to the U S Supreme Court, Agudath 
Israel of America became the first maker national 
Jewish organization public!) to support the nomina¬ 
tion 

in an elaborate memorandum to the members of 
the Senate Judiciary Committee. David Zwiebel. Agu¬ 
dath Israel's director of government affairs and gen¬ 
eral counsel, conveyed the rationale underlying the 
65-year-old Orthodox Jewish movement's histone 
decision to speak out on the Bork nomination 

"Agudath Israel has never before taken a public 
position on any nomination to the Supreme Court, and 
several members of its board urged that the organiza¬ 
tion maintain itspohev of neutrality on Supreme Court 
nominations However, because the Dork nomination 
has generated such broad public comment, and ospo- 
ciall) because so many Jewish groups have spoken out 
against the nomination and may thereby have created 
the misconception that ‘the Jewish community’ i« uni¬ 
ted in its opposition to the principles for which Judge 
Dork stands, the majority of Agudath Israel’s board 
concluded that neutrality would not be an appropriate 
response on this occasion ” 


The Agudath Israel memorandum focuses on two 
broad themes the organization's view that “Judge 
Bork's presence on the Supreme Court could have a 
positive influence in some of the great public policy 
issues of our day", and Agudath Israel’s belief that''the 
overall philosophy of judicial restraint so eloquently 
espoused by Robert Bork is ultimately in the best 
interests of all Americans, including minority com¬ 
munities like ours “ 


FIGURE-1 



3643 


•JEWISH PRESS 

the largest independent anclo Jewish weekly newspaper 

Copyright *1987 The Jewilh Pr**'lnc. T«o<* M < JTy Wa„ 0 Lrd Till I Mm Walk In n. Trull,- Pulrx* SS II 


VOL. XXXVII No. 37 WEEK OF SEPTEMBER 11 TO SEPTEMBER 17, 1987 17 ELUL 


EDITORIALS 


The Confirmation Of Judge Bork 

The vote, within a few weeks, in the United 
Stales Senate over whether or not to confirm 
President Reagan's nomination of Judge 
Robert Bork as J ustice of the Supreme Court is 
quite seriously a matter of life and death for 
ourselves, our children, and ourgrandchildren 
Most of the unchecked violent crime, including 
street muggings, rapes, burglaries, etc,. — and 
the breakdown of our criminal justice system - 
arc* largely duo losoft'on-crime radical, literal 
judges on the Supreme Court and lower courts. 

Judge Bork a moderate conservative, is a 
wise and sensible law and order judge. While on 
the federal Court of Appeals in Washington. 
Bork issued a ruling in favor of the death 
penalty, and another ruling rejecting accused 
Nazi w ar criminal Ivan Demjanjuk’s efforts to 
avoid deportation to Israel. Supporting Bork is 
the vast, overwhelming majority of the nation's 
pnhee and law enforcement officials 


In addition, and of gravest importance, 
many crucial lawsuits involving efforts to 
expand nationwide the “gay rights” agenda of 
militant homosexuals, as well as wise and 
responsible efforts to prevent promiscuous 
homosexuals from further rapidly spreading 
AIDS and contaminating the nation’s blood 
supply, are expected to come before the 
Supreme Court Judge Bork has shown himself 
to be flatly opposed to an activist liberal judi¬ 
ciary imposing the homosexual lifestyle (“gay 
rights”} agenda <>rt *h»* American {>eople, 
including imr voing -«• n««.. ■ 1 idrvn. 

As might be expected, the we 11-financed 
radical homosexual and lesbian organizations 
strenously oppose Bork, as do the leading lobby¬ 
ists for criminal "rights," such as the ACLU. 

All this is clear enough proof that Bork is 
our man — not to mention that a growing 
number of influential leading rabbis back 
Bork. A man is known by both his friends and 
his enemies. 

The Supreme Court presently is divided 
between four liberals and four centrist to con¬ 
servative justices, so Bork would help tip the 
balance our way. Since Supreme Court deci¬ 
sions set the social and moral climate for gen¬ 
erations to come, we see how important the 
Senate vote on Bork is. We call on Senators 
Moynihan, D’Amato, Weieker, Dodd, Lauten- 
berg, Bradley and our other Senators to vigor¬ 
ously back Bork, 


FIGURE-2 






3644 


ATTITUDES OF THE FOUNDING FATHERS 


Of all the dispositions and habits which lead to political 
prosperity. Religion and Morality are indispensable sup¬ 
ports. ... In vain would that man claim the tribute of 
Patriotism, who should labour to subvert these great 
pillars of human happiness, these firmest props of the 
duties of Men and Citizens. The mere Politician, equally 
with the pious man ought to respect and to cherish 
them . . . And let us with caution indulge the supposi¬ 
tion, that morality can be maintained without religion. 
Whatever may be conceded to the influence of refined 
education on the minds of peculiar structure; reason and 
experience both forbid us to expect that national morality 
can prevail in exclusion of religious principle. 20 


26. "Washington’s Farewell Address," C. R. Gaston, ed., in Standard 
English Classics. 


A more legalistic appioaeh to the historic analysis of 
sectarianism, and Bible reading's place in the public schools, 
is made by the Michigan court and is representative of the 
approach used by some midwestern courts. 33 The Michigan 
court explained that the state constitution of 1835 incor¬ 
porated the Federal Ordinance of 1787. The Ordinance 
said in part, 

Religion, morality and knowledge are essential to good 
Government and the happiness of mankind, and for these 
purposes, schools and the means to education shall ever 
be encouraged. 

The court also pointed out that while the Ordinance did 
not make the teaching of religion imperative, it precludes 
the idea that the founders of the state’s constitution meant 
to exclude the Bible from the public schools. 3 '* 


25. People ex rel. Ring v. Board of Education, 92 N.E. at 255; Board 
of Education v. Minor. 25 Ohio St. at 239 and 2*15. 

24. 77 N.W. at 252. 


FIGURE-3 






3645 


Library of Congress Cataloging in Public, tion Data 

Berger. Raoul, 1901- 

Ciovernmeiit by judiciary I’Ik u.mslorm.ttiou ol 
the Fourteenth Amendment 

Page-1 

T HE Fourteenth Amendment is the 
case study par excellence of what Jus¬ 
tice Harlan described as the Supreme 
Court’s “exercise of the amending power,’’ 1 its continuing revi¬ 
sion of the Constitution under the guise of interpretation. Be¬ 
cause the Amendment is probably the largest source of the 
Court’s business 2 and furnishes the chief fulcrum for its control 
of controversial policies, the question whether such control is 
authorized by the Constitution is of great practical importance. 


A corollary is that the “original intention” of the Framers, 
here very plainly evidenced, is binding on the Court for the 
reason early stated by Madison: if “the sense in which the Con¬ 
stitution was accepted and ratified by the Nation ... be not 
the guide in expounding it, there can be no security for a con¬ 
sistent and stable [government], more than for a faithful exer¬ 
cise of its powers.” 7 


1. Reynolds v Sims, 377 US 533, 591 (1964) 

2 Felix Frankfurter, “John Marshall and thcjudicia! Function,” 69 Harv L 
Rev. 217, 229 (1955) 

7 9 James Madison, The Writings of James Madison 191 (G Hunt ed 
1900-1910) 


FIGURE-9 




3646 


Library of Congress Cataloging in Publication Data 

Goldberg, George, 1935- 
Reconsecranng America 

Page 118 


But the issue must be discussed against the background of the 
First Amendment, not, as is too often the case, in a vacuum. The 
idea that secular or "humanistic" ideals are entitled to the same 
constitutional consideration as religious principles, or that agnos¬ 
ticism and even atheism must be given equal constitutional billing 
with traditional religion, is simply false. All forms of expression 
enjoy constitutional protection under the free speech and press 
clauses of the First Amendment, but religion enjoys something 
more: the free exercise thereof. The argument that to give non- 
discriminatory aid to all religions is to discriminate against irreli- 
gion has as its effect, if not its purpose, the emptying of the free 
exercise clause of any meaning whatsoever. 

But the basic weakness of the strict separationist position on 
school prayers is that it is not honest. It is fascinating how the 
same people who on certain occasions profess great sympathy for 
minorities and poor people turn into Marie Antoinette when con¬ 
fronted with school prayers: let them go to private school, or let 
their parents teach them religion. How can a person who in the 
context of aid to dependent children cites statistics of broken homes, 
rodent-infested apartments crowded beyond imagination, and chil¬ 
dren roaming the streets untended, in the context of school prayers 
conjure up warm families sitting around the fireside listening to 
the paterfamilias (50 percent of minority children in the United 
States live in fatherless homes) recite verses from the Bible with 
appropriate commentary? 


Sex must be taught in the schools because parents are unequal 
to the task, but religious instruction is held to be within their 
competence. Surely the evidence compels the opposite conclusion 
The argument that, like Sergeant Friday in the old Dragnet 
series, schools are only concerned with facts, is equally untenable. 
The selection and presentation of the limitless supply of available 
observations, theories, and opinions determine the direction and 
meaning of the educational process 


FIGURE-5 




3647 


el)c $eUr jjork eimcs 


NEW VORK, SI/ND4V, SEPTEMBER /3, I9S7 


Judge Bork: Restraint vs. Activism 


By STUARTTAYLOR Jr 


Vehement Attacks 
On the Modern Court 

Perhaps ihc most sinking aspect erf 
Judge Bork's writings and speeches 
since (he lale IWO'is his vehement de¬ 
nunciation, repeated ovci many years, 
ol Supreme Cowl decisions icpicscm- 
ing much of ihe legal cvnluoon since 
U*f iW't 


rn a I98J speech, ho said a • larjjc 
pioportion" of ihe "mosi significant 
constitutional decision' of ihe pasi 
three decades" roulri nm have been 
reached i (trough legitimate means of 
consul lit Kina) inicrpi elation 


He Has criticized the Court for 
"overly expansive" and "rigidly secu¬ 
larist” enforcement of ihe First 
Amendment’s prohibition of the estab¬ 
lishment of religion and us guarantee 
of religious freedom And he has advo- 
caied "reIntroduction of some religion 
into public schools and some greater 
religious symbolism in our public life ” 
Many other prominent constuutfoiul 
scholars share Judge Bork's doubts 
about some of those decisions, in 
particular the Court's 1973 ruling that 
abomon is a const it u» tonal right, and 
they reaped the force of h is a rgumems 
cven^khen they disagree. 


Thus, he has argued, the Court's 
more expansive extrapolations from 
vaguely worded provisions o< the Bill of 
Rights have been anti-democratic and 
unprhictpM, based not on the Constitu¬ 
tion in any real sense but cm the per¬ 
sonal political and moral values of (he 
Justices 


WAS ft/NO 7 ON. S/’PJ JJ — rol/owmp are excerpts 
pom wri/mgs. speeches cind Court opinions by Judge 
Robert (/ Horfe on a range of issues 


V 


On Abortion 


Rocv Wade is an unconstitutional decision a sc nous 
and wholly unjustifiable judKiul usurpation of state 
legislative authorit y l also think that Roe v Wade is by 
no means the only example of such unconstitutional 
bcluvioi by ihc Supicme Court Without any wan ant 
m the Consuiution. the couits have require-! so many 
basic and unsettling changes in American life and gov¬ 
ern mem thai a political response was inevitable 

— fief Senate iC'fitnortyurt ponding leg I *kiliiu| 


On the Supreme Court 


We have a Court which is trowing individual rights 
which are not to he found m the Constitution by any 
standard method of interpretation Hie Court itself, from 
time to time, admits mat. and more significantly, the de¬ 
fenders of the Court's performance admit d 


What the courts at c doing is in fact to create new 
consmutionai values which are nothing more than the 
imposition of u^iei -middle-class vahics on the society 
“The liberty cd free men, among other things, is the 
liberty to make laws, which is increasingly being 
denied ” 

— ;w 'ix-<-< h win #YtAvuntvnmy yoterai ijtsocteiy 


FIGURE-6 








3648 


PETER L. 
BEH( *EB 

RELIGION IN A 
REVOLUTIONARY SOCIETY 

F'3 ure - 7 





AMERICAN ENTERPRISE INSTITUTE’S DISTINGUISHED LECTURE SERIES 



3649 


Distinguished Lecture Series 

. on 

the Bicentennial 


This lecture is one in a series sponsored 
by the American Enterprise Institute 
in celebration of the Bicentennial of the United States. 
The views expressed are those of the lecturers 
and do not necessarily reflect 
the views of the staff, officers or trustees of AEI. 

All of the lectures in this series will be 
collected later in a single volume. 


revolution • continuity • promise 


3650 


PETER L. 
BERGER 

RELIGION IN A 
REVOLUTIONARY SOCIETY 


Delivered at 

Christ Church, Alexandria, Virginia 
on February 4, 1974 


American Enterprise Institute for Public Policy Research 
Washington, D. C. 



3651 



was given to me, implies a formidable assignment—no less than the 
overall consideration of the place of religion in contemporary 
America. I have some reservations about applying the adjective 
“revolutionary” to American society. But, minimally, it refers to 
something very real in that society—namely, its quality of rapid and 
far-reaching change—and for this reason I describe our present 
society, not just that of 1776, as revolutionary. 

This quality of change makes my assignment all the more 
difficult. It is a source of constant embarrassment to all commen¬ 
tators and forecasters. Just look what happened to the most cele¬ 
brated diagnoses of our situation during the last decade: Harvey 
Cox published his best-selling beatification of the new urbanism 
just before everyone agreed that American cities had become unfit 
for civilized habitation. The proclamation of the death of God 
hit the cover of Time magazine just before the onset of a massive 
resurgence of flamboyant supernaturalism. More recently, those 
who were betting on the greening of America led the Democratic 
party to one of its biggest electoral defeats in history. And just 
now, when Daniel Bell has impressively proclaimed the coming 
of post-industrial society, the energy crisis makes one think that 
we will be lucky if we manage to stay around as an industrial 
society. Perhaps the only advice one can give to the sociological 
prophet is to write his book quickly, and then go into hiding—or, 
alternatively, to be very, very careful. This is not a book, but 1 
intend to be careful. This means, among other things, that I cannot 


1 


3652 


spare you some pedantic distinctions, qualifications, and less-than- 
inspiring formulations. 


I 


The consideration before me in¬ 
volves some sort of answer to the question “where are we at?" To try 
for this answer, it will help to find a date in the past with which to 
compare the present moment. If one wants to make rather sweep¬ 
ing statements, one will likely pick a date far back in history, like 
1776, or the time of the Reformation, or even the late Ice Age (as 
Andrew Greeley did recently—his thesis being that “the basic 
human religious needs and the basic religious functions have not 
changed very notably since the late Ice Age," the credibility of 
which thesis clearly hinges on one’s understanding of “basic”). 
Taking seriously my own warning to be careful, I propose to take 
a much more recent date: 1955. This happens to be the year in 
which an important book on American religion was published, 
Will Herberg’s Protestant—Catholic—Jew. 1 More important, 
though, the mid-1950s were the years just before a number of 
significant ruptures in the course of American religion and of 
American society generally (ruptures, incidentally, which no one 
foresaw). It is a convenient date with which to compare the present 
moment. In attempting to meet my assignment, therefore, I will 
concentrate on two questions: What was the situation of A merican 
religion about 19S5? What has happened to it since then? 

Since this period has of late become the subject of intensive 
nostalgia, I should add that my choice of.date is non-nostalgically 
motivated. I was wonderfully young at the time, and I am all too 
susceptible to reminiscing about my youth in a rosy glow of 
memories. I am quite sure that I and my contemporaries had no 
notion then of living in a particularly rosy time. It is probably 
inevitable that we look back on the time of our youth as some sort 
of Golden Age. I imagine that this was the case with individuals 

1 Will Herberg, Protestant—Catholic—Jew: An Essay in American Religious 
Sociology (Garden City, N.Y.: Doubleday & Co., Inc., 1955) . 


2 



3653 


who were young during the Black Death or the invasions of Genghis 
Khan. There is a temptation to project one's own decline since 
then to the society at large. The temptation is to be resisted. 

In other words, the comparison between 1955 and 1974 is not 
necessarily odious. But before I start comparing, I must elaborate 
one very essential distinction, the distinction between denomina¬ 
tional religion and civil religion. 

Denominational religion in America refers to what most 
people mean when they speak of religion—the bodies of Christian 
and Jewish tradition as these are enshrined in the major religious 
organizations in this country. Denominational religion is the re¬ 
ligion of the churches. The plural, churches, is very important: 
there are many churches in America, and for a long time now they 
have existed side by side under conditions of legal equality. Indeed, 
Richard Niebuhr suggested that the very term “denomination” be 
defined on the basis of this pluralism. A denomination is a church 
that, at least for all practical purposes, has come to accept coexis¬ 
tence with other churches. This coexistence was brought about in 
America by unique historical circumstances, which w'ere not in¬ 
tended by anyone and which at first were only accepted with great 
reluctance. Later on, a virtue was made out of the necessity, as 
religious tolerance became part and parcel of the national ideology 
as well as of the basic laws of the American republic. (Let me say 
in passing that I regard religious tolerance as a virtue indeed. It 
is all the more interesting to recognize that its original attainment 
was unintended. I incline to the view that most moral achieve¬ 
ments in history have this character of serendipity. Or, if I may 
put it in Lutheran language, virtue comes from undeserved grace.) 

Civil religion in America refers to a somewhat vaguer entity, 
an amalgam of beliefs and norms that are deemed to be fundamental 
to the American political order. In the last few years the idea of 
an American civil religion has been much discussed in terms pro¬ 
posed in an influential essay on the topic by Robert Bellah, but 
both the idea and the phrase antedate this essay.- Herberg, for 
instance, discussed very much the same idea using a slightly differ¬ 
ent terminology. The general assumption here is that the American 

2 Robert Bellah, “The Civil Religion in America,” in Donald Cutler ed., The 
Religious Situation: Nineteen Sixty-Eight (Boston: Beacon Press, 1968). 


3 



3654 


polity not only bases itself on a set of commonly held values (this 
is true of any human society), but that these values add up to some¬ 
thing that can plausibly be called a religion. The contents of this 
religion are some basic convictions about human destiny and 
human rights as expressed in American democratic institutions. 
Gunnar Myrdal, in his classic study of the Negro in America, aptly 
called all this "the American creed." The proposition that all men 
are created equal is a first article of this creed. 

An obvious question concerns the relationship between these 
two religious entities. Different answers have been given to this 
question, and I can claim no particular competence in the historical 
scholarship necessary to adjudicate between them. Thus, to take 
an example of recent scholarly debate, I cannot say whether the 
civil religion of the American republic should be seen in an essen¬ 
tial continuity with the Puritan concept of the convenant, or 
whether it should be understood as the result of a decisive rupture 
with Puritanism brought about by the Deist element among the 
Founding Fathers. Be this as it may, it is clear that the two 
religious entities have had profound relations with each other from 
the beginning. Nor is there any doubt that crucial ingredients of 
the civil religion derive directly from the Protestant mainstream of 
American church life, to the extent that to this day the civil religion 
carries an unmistakably Protestant flavor (a point always seen more 
clearly by non-Protestants than by Protestants, for people are always 
more likely to notice unfamiliar flavors). Thus, for instance, the 
codification of the rights of the individual conscience in the 
American political creed loudly betrays its Protestant roots, even 
when (perhaps especially when) it is couched in denominationally 
neutral language. 

It is important to understand how the civil religion relates 
to the pluralism of denominations. Thus, in one sense, the civil 
religion is based on a principle of religious tolerance. Except for 
some isolated cases (Tom Paine was one), the spokesmen of the 
civil religion were not only friendly to the major churches but 
insisted that the latter were vital to the moral health of the nation. 
In another sense, however, the civil religion marks the limits of 
tolerance and indeed of pluralism. While it accepts a broad diver¬ 
sity of religious beliefs in the society, it limits diversity when it 
comes to its own beliefs. The lines between acceptable and un- 


4 



3655 


acceptable diversity have frequently shifted in the course of time, 
but to this day the category “un-American” points to the fact that 
there are clearly unacceptable deviations from the common civil 
creed. Belief in the divine right of kings, for example, was as clearly 
beyond the lines of official acceptability in an earlier period of 
American history as belief in redemption through socialist revolu¬ 
tion came to be later on. 

Unlike some of the democratic ideologies of Europe and Latin 
America, democracy in the United States was not inimical to the 
churches. The separation between church and state in the Ameri¬ 
can Constitution did not, until very recently, imply that the state 
must be antiseptically clean of all religious qualities—only that the 
state must not give unfair advantage to one denomination over 
another. In other words, the assumptions underlying the separation 
of church and state were pluralist rather than secularist. It is no 
accident that there is no adequate American translation of the 
French term laique, and that (again, until very recently) there was 
no widespread demand that the American polity should become 
a “lay state” in the French sense. Indeed, a good case can be made 
that church /state relations in this country had the character of a 
“pluralistic establishment”: officially accredited denominations 
were allowed to share equally in a variety of privileges bestowed 
by the state. Exemption from taxation and opportunity for chap¬ 
laincy in public institutions are cases in point. Just which groups 
were to be regarded as officially accredited, of course, was subject 
to redefinition. 

To put it differently, the beneficiaries of the “pluralistic estab¬ 
lishment” have been an expanding group ever since the system was 
inaugurated. First were added various less-than-respectable Protes¬ 
tant bodies (such as the Quakers), then Catholics and Jews, and 
finally groups completely outside what is commonly called the 
Judaco-Christian tradition. The struggle of the Mormons to obtain 
“accreditation” marked an interesting case in this process. Recent 
court decisions on what (if my memory serves me correctly) were 
actually called “the religious rights of atheists,” as well as recent 
litigation by Black Muslims, mark the degree of expansion of the 
system to date. 

Historically, then, denominational religion and civil religion 
have not been antagonistic entities in America. Their relationship 


5 



3656 


has rather been a symbiotic one. The denominations enjoyed a 
variety of benefits in a “pluralistic establishment,” the existence 
of which was not only fostered by the state but solemnly legitimated 
by the civil religion to which the state adhered. Conversely, the 
civil religion drew specific contents and (in all likelihood) general 
credibility from the ongoing life of the denominations. Neverthe¬ 
less, each entity has had a distinct history, with different forces 
impinging on the one or the other. Any assessment of the con¬ 
temporary situation must allow for this distinction. 

n 

Keeping this distinction in mind, 
then, let us go back to the period around 1955: what was the 
situation at that time? 

As far as denominational religion was concerned, the market 
was bullish indeed. These were the years of what was then called 
a “religious revival.” All the statistical indicators of organized 
religion were pointing up. Church membership reached histori¬ 
cally unprecedented heights. Most significant (or so it seemed 
then), it was younger people, especially young married couples, 
who became active in the churches in large numbers. The offspring 
of these people crowded the Sunday schools, creating a veritable 
boom in religious education. Church attendance was up, and so 
was financial giving to the churches. Much of this money was very 
profitably invested, and the denominational coffers were full as 
never before. Understandably enough, the denominational func¬ 
tionaries thought in terms of expansion. “Church extension” was 
the phrase constantly on their lips. There was an impressive boom 
in church building, especially in the new middle-class suburbs. 
The seminaries were filled with young men getting ready to swell 
the ranks of the clergy. Perhaps they were not “the brightest and 
the best” among their peers, but they were competent enough to 
fulfill the increasingly complex tasks required of the clerical pro¬ 
fession in this situation. In the bustling suburban “church plants” 
(a very common term at the time) this clerical profession often 
meant a bewildering agglomeration of roles, adding to the tradi- 


6 



3657 


tional religious ones such new roles as that of husiness adminis¬ 
trator, educational supervisor, family counselor and public relations 
expert. 

The “religious revival” affected most of the denominations in 
the Protestant camp, and it affected Catholics and Jews as well. It 
seemed as if everyone were becoming active in his respective 
“religious preference.” (By the way, an etymological study of this 
term derived from the consumer market would be worth making 
some day.) It was important, therefore, that all of this took place 
in a context ol (apparently) solidifying ecumenism and interfaith 
amity. The Protestants within the mainline denominations were 
going through something of an ecumenical orgy. There were several 
church mergers, the most significant of these (long in preparation) 
being the union between the Congregationalists and the Evangeli¬ 
cal and Reformed Church to become the United Church of Christ. 
The formation of this body in 1957 was widely heralded as a land¬ 
mark in the movement toward Christian unity. Quite apart from 
these organizational mergers, there was a plethora of agencies con¬ 
cerned full time with interdenominational relations, ranging from 
the still quite young National Council of Churches to state and 
local councils. While some of these agencies engaged in theological 
discussion, most of their work was severely practical. An important 
task was the one formerly called “comity” and recently rebaptized 
as “church planning.” Especially on the local level this meant that 
church expansion was based on research and on agreements among 
the denominations not to engage in irrational competition with 
each other—and particularly not to steal each other’s prospective 
members. The religious market, in other words, was increasingly 
parcelled out between cartel-like planning bodies (and no antitrust 
laws stood in the way of these conspiracies to restrain free competi¬ 
tion). Beyond all these formal processes of collaboration, there 
was a broad variety of informal acts of rapprochement— intercom¬ 
munion, exchange of pulpits, interdenominational ministries in 
special areas, and so on. 

It should be emphasized that most of this occurred within the 
mainstream denominations, which had a predominantly middle- 
class constituency. The more fundamentalist groups, with their 
lower-middle-class and working-class members, stood apart, under¬ 
going at the same time quite dramatic growth of their own. It seems 


7 



3658 


that the apartness of these groups was not much noticed and even 
less regretted by the ecumenists: the presence of the Greek Ortho¬ 
dox in the National Council was noted with pleasure, the absence of 
tile Pentecostalists was of little concern. More noticed was the new 
relationship to Catholics and Jews. While the Roman Catholic 
Church still moved slowly in those pre-Vatican II days, there was 
little doubt that the old hostility between the two major Christian 
confessions was a matter of the past. And both Protestants and 
Catholics habitually expressed goodwill toward Judaism and the 
Jewish community, not only through such organizations as the 
National Conference of Christians and Jews but, more important, 
in local churches and synagogues throughout the country. Signifi¬ 
cantly. the major Protestant denominations increasingly took for 
granted that practicing Catholics and Jews were not fair game for 
evangelistic activity, thus at least informally including them in 
ecumenical “comity.” 

In retrospect it has come to seem plausible that at least some 
of this religious boom w’as deceptive. Even then there were (juitc a 
few individuals who questioned how religious the “religious re¬ 
vival” really was. Several factors contributing to it had very little 
to do with religious motives proper—high social mobility, with 
large numbers of people moving into the middle class and believing 
that the old nexus between bourgeois respectability and church 
membership still held; high geographical mobility, witii migrants 
finding in the churches a convenient symbol of continuity in their 
lives: the postwar baby boom, with parents feeling rather vaguely 
that Sunday schools could provide some sort of moral instruction 
that they themselves felt incompetent to give (there are data show¬ 
ing that frequently it was the children who dragged their parents 
after them into the churches, ratiicr than the other way around). 
As a result of these factors, there was a good deal of what might be 
called invisible secularization. In the midst ol all this boisterous 
activity the deepening erosion of religious content in the churches 
was widely overlooked. 

The “religious revival” in the denominations was paralleled 
by an equally impressive flowering of the civil religion. These, 
after all, W'ere the Eisenhower years, aptly characterized by William 
Lee Miller, in a famous article in The Reporter magazine, as “Piety 
along the Potomac.” Indeed, it was Eisenhower himself who made 


8 



3659 


statements that could be taken as crystalline expressions of the 
mid-1950s version of the civil religion, such as this one: “Our 
government makes no sense unless it is founded in a deeply felt 
religious faith—and I don’t care what it is." The political relevance 
of this faith, deeply felt and at the same time seemingly devoid ol 
content, was expressed in another Eisenhower statement: “America 
is great because she is good.” One may call this patriotic religion 
or religious patriotism. Either way, the content was America—its 
political and social institutions, its history, its moral values, and not 
least its mission in the world. 

The rhetoric of the national government during these tears 
was full of such religio-political formulations. Except for a small 
minority of anti-Eisenhower intellectuals, the country lound this 
rhetoric quite in accord with its mood. Despite some shocks 
(notably the McCarthyite hysteria and the less-than-victorious end¬ 
ing of the Korean conflict), the mood was still one of national 
self-confidence if not complacency. There was still the afterglow, 
as it were, ol America's great victory in World War II—a most 
credible conjunction of greatness and goodness. The postwar 
American empire was going well, with American soldiers mounting 
the battlements of freedom from Korea to Berlin. The Cold War, 
if anything, deepened the affirmation ol the \ irtues of the American 
way ol lilc as against the Communist adversary. (Not the least ol 
the latter’s evils teas its ideology oi “godless materialism.’’) The 
economy was going well, the dollar was king, and American busi¬ 
nessmen as well as tourists circled the globe as emissaries (rom 
Eldorado. Indeed, many of its intellectuals were celebrating 
America (even it, as it later turned out, some ol the celebration 
was subsidized by the CIA). 

I do not want to exaggerate. I am not suggesting that there 
we re no tensions, no doubts, in this mood. But compared to what 
happened later, this period impresses one in retrospect by the 
apparent unbrokenness—intactness—of the American creed. Just 
as the imperial cidt of classical Rome teas sustained by the unques¬ 
tioned veneration ol the familiar shrines in innumerable house¬ 
holds, so the American civil religion drew its strength from the 
daily matter-of-course enactment ot the virtues of the American 
way of life by innumerable individual citizens. I would not like 
to be misunderstood here: I am not saying that there was more 


9 



3660 


morality in the 1950s than there is today; I am saying that such 
morality as was practiced was taken for granted in a different way. 
The American virtues, and the virtue of America as a society, were 
still upheld in the mind of the country as self-evident truths. I 
suppose that this assurance might well be characterized as inno¬ 
cence. To a remarkable degree, this rather grandiose self-image of 
Americans was reflected in the way they were viewed by foreigners— 
not least by the two major enemy nations of World War II. 

Ill 


If that was the situation in 1955, 

what has happened since? 

To summarize the change, I shall take the liberty of making 
reference to my first book, a sociological critique of American 
Protestantism published in 1961. 3 In this book, when describing 
the notion that the world is essentially what it is supposed to be, 
I used the phrase “the okay world.” I argued that religion in 
middle-class America served to maintain this sense of the world 
being “okay.” I still think this was a fair description. The change 
since then can be conveniently summed up by saying that more and 
more people have come to the conclusion that their world is not 
“okay,” and religion has lost much of its ability to persuade them 
that it is. 

In denominational religion, the changes have differed greatly 
by class. The Protestant groups drawing most of their membership 
from below the upper-middle class have continued to grow, some 
of them in a dramatic way. They have largely remained untouched 
by the crises and self-doubts that have lacerated their higher-class 
brethren. Their theological fundamentalism has been modified 
here and there and their organizational style has been modernized, 
but as far as an outside observer can judge, their self-confidence 
as upholders of Evangelical truth has remained largely unbroken. 
The picture is quite different in the mainstream denominations. 

a Peter Berger, The Noise of Solemn Assemblies (Garden City, N.Y.: Double¬ 
day & Co., Inc., 196!). 


10 



3661 


By the mid-1960s the “religious revival’’ was clearly over. All 
the statistical indicators started ebbing or even pointing down- 
membership, attendance, financial {giving and (logically enough) 
church expansion. As budgets became leaner, the denominational 
and interdenominational organizations were forced to cut down on 
program as well as stall. Seminary enrollments stayed high, but 
there was widespread suspicion that the automatic exemption ol 
seminary students Irotn tlte dralt itad much to do with this (a 
suspicion that appears to Ire borne out in what is happening in the 
seminaries now). The market for denominational religion, in short, 
was becoming bearish. Not surprising!), its amicable management 
through ecumenical cartels seemed less and less attractive. 'There 
appeared a marked reluctance to engage in further mergers, 
characterized by some observers (perhaps euphemistical!)) as “a 
resurgence of denominational spirit.” The organizational mood 
became one of retrenchment. 

More deeply, the 1960s were characterized in mainstream 
Protestantism b) what can best be described in Gilbert Murray’s 
phrase as a “failure ol nerve.” The best-known theological move¬ 
ments seemed to vie with each other in the eagerness with which 
they sought to divest tlte churches ol their traditional contents and 
to replace these with a variety ol secular gospels—existentialism, 
psychoanalysis, revolutionary liberation, or mutnl-guule sensitivity. 
The “dcath-of-God” theology was the grostesque climax of this 
theological scli-disembowchnent At the same time the church 
functionaries, increasingly panicky about the late of their organiza¬ 
tions. tended to jump on whatever cultural or political bandwagon 
was proclaimed by the so-called opinion leaders as the latest revela¬ 
tion of the Zeitgeist. As was to be expected, all these ellorls “to 
make the church more relevant to modern society” had the effect 
ol aggravating rather than allcv iating the religious recession. Those 
church members who still felt loyalty to the traditional content ol 
their faith were bewildered i( not repelled by all this, and those 
whose membership was motivated by secular considerations to 
begin with often lelt that such commodities as “personal growth” 
or “raised consciousness” could be obtained just as well (and less 
expensively) outside the churches. Tlte major consequence (un¬ 
intended, needless to say) ol Vatican II seems to have been to spread 
the aforementioned Protestant miseries through tire Catholic com- 


11 



3662 


munity: the “failure of nerve” has become ecumenical too. At 
the same time, American Judaism and the American Jewish com¬ 
munity in general have been driven by a variety of causes into a 
much more particularistic and defensive posture than was the case 
when Herberg announced the arrival of a “tripartite” American 
faith. 

Just as there was good reason to doubt that the “religious re¬ 
vival” of the 1950s was caused by some sort of mass conversion, so it 
is unlikely that the subsequent decline is to be explained by sudden 
spiritual transformations. My own tendency is to think that secular¬ 
ization has been a long-lasting and fairly even process, and that 
nothing drastic happened to the American religious consciousness 
either after World War II or in the most recent decade. What 
happened, I think, is that the quite mundane social forces that 
made for the “religious revival” subsequently weakened. Most 
important, the linkage between middle-class status and church 
membership weakened (something that took place in England, by 
the way, in the wake of World War I). In consequence, the pre¬ 
viously invisible secularization became much more visible. If you 
like, secularization came out of the closet. The inability of the 
churches to confront the emerging skeleton with a modicum of 
dignity almost certainly contributed to its devastating effect. 

The changes that have taken place in the civil religion, I think, 
resulted partly from these changes in denominational religion (in¬ 
evitable in view of the symbiotic relation between the two), and 
partly from extraneous developments in the society. To some degree, 
it can be said, the American polity has become more laique in recent 
years, and I suspect that this is largely due to the more openly ac¬ 
knowledged secularism of that portion of the college-educated upper 
middle class that finances what it considers good causes—in this 
instance, the cause of pushing secularist cases through the courts. 
The Supreme Court proscription of prayer in the public schools 
was the most spectacular of these cases. It was an exercise in extraor¬ 
dinary sociological blindness, though it appears that those who 
advocated it have learned absolutely nothing from the outcry that 
ensued. The same laique trend may be seen in the rigid resistance 
to any allocation of tax funds to church schools, in threats to the 
tax-exempt status of religious institutions, and in current discussion 
of various forms of chaplaincy. More important, a militant secular- 


12 



3663 


ism today comes dangerously close to denying the right of the 
churches to attempt influencing public policy in accordance with 
religious morality. The abortion issue illustrates this most clearly. 
I doubt whether the tendency of the courts to go along with the 
secularists has profound reasons. Most likely it can be explained 
simply in terms of the parties attended by federal judges and the 
magazines read by their wives. (I assure yon that I intend no dis¬ 
respect to our judiciary—actually one of our more cheering institu¬ 
tions—but I am too much of a sociologist to believe that its decisions 
are made in some judicial heaven sublimely detached from the 
socio-cultural ambience of its members.) 

There has thus come to be a threat to the old symbiosis be¬ 
tween denominational and civil religion in America. And a more 
dramatic threat has come Irom much larger events in the society. 
It has often been said in the last few years that the legitimacy 
of tiic American political order faces the graxest crisis since the 
Civil War. Even alter making proper allowance lor the propensity 
of professional social critics to exaggerate, the diagnosis stands up 
under scrutiny. To be sure, there are important class and regional 
differences: what is perceived as doomsday by readers of tire New 
York Review oj Books may seem a less than overwhelming nuisance 
to the reader of a small town newspaper in Kansas, and there is 
hard evidence to the effect that there continue to be large masses 
of people whose “okay world” has not been fundamentally shaken. 
Yet lew people have remained untouched b\ the political and 
moral questioning induced by the headline events of the last decade 
—the continuing racial crisis, the seemingly endless fiasco ol the 
imperial adventure in Indochina, the eruption ol chaos on campus, 
and finally the shock of the Watergate revelations. I doubt if 
these events, singly or even in combination, are ultimate causes ol 
the crisis of the American political creed: I think it is more plau¬ 
sible to see this crisis rooted in much more basic tensions and dis¬ 
contents of modern society, of “revolutionary” society, and to 
understand the events as occasions for the underlying difficulties to 
become manifest. 

Obviously I cannot develop this point here. Suffice it to say 
that the survival in the twentieth century of a political order con¬ 
ceived in the eighteenth is not something about which I ant san¬ 
guine (though, let me hasten to add, I fervently believe in the 


13 



3664 


continuing effort to keep this eighteenth-century vision alive). Be 
this as it may, we have been passing through a process that sociolo¬ 
gists rather ominously describe as delegitimation —that is, a weak¬ 
ening of the values and assumptions on which a political order is 
based. We have been lucky, I think, that this malaise of the political 
system has not so far been accompanied by severe dislocations in 
the economy: I can only express the hope that our luck continues 
to hold. 

It may then be said that the civil religion has been affected by 
a double secularization. It has been affected by the secularizing 
processes in the proper sense of the word, the same processes that 
have come to the fore in the area of denominational religion. But 
it has also undergone a “secularization”—that is, a weakening in 
the plausibility of its own creed, quite apart from the relation of 
this creed to the several churches. Put simply, the phrase “under 
God,” as lately introduced into the Oath of Allegiance, has become 
implausible to many people. But even without this phrase the 
propositions about America contained in the oath have come to 
sound hollow in many ears. That is the measure of our crisis. 

IV 

However prudent one may want to be 
with regard to the tricky business of prediction, it is almost inevi¬ 
table in a consideration such as this to look toward the future. 
What are some plausible scenarios? 

As we look at the future of denominational religion in Amer¬ 
ica, a crucial consideration will be how one views the further course 
of secularization. In the last few years I have come to believe that 
many observers of the religious scene (I among them) have over¬ 
estimated both the degree and the irreversibility of secularization. 
There are a number of indications, to paraphrase Mark Twain, 
that the news about the demise of religion has been exaggerated. 
Also, there arc signs of a vigorous resurgence of religion in quar¬ 
ters where one would have least expected it (as, for instance, 
among the college-age children of the most orthodox secularists). 
All this need not mean that we are on the brink of a new Reforma- 


14 



3665 


tion (though I doubt if anyone thought they were on the brink of 
a Reformation at the beginning of the sixteenth century either), 
but it seems increasingly likely to me that there are limits to secu¬ 
larization. I am not saying this because of any philosophical or 
theological beliefs about the truth of the religious view of reality, 
although I myself believe in this truth. Rather, I am impressed by 
the intrinsic inability of secularized world views to answer the 
deeper questions of the human condition, questions of whence, 
whether, and why. These seem to be ineradicable and they are 
answered only in the most banal ways by the ersatz religions of 
secularism. Perhaps, finally, the reversibility of the process of 
secularization is probable because of the pervasive boredom of a 
world without gods. 

This does not necessarily mean, however, that a return to 
religion would also mean a return to the churches. It is perfectly 
possible that future religious resurgences will create new institu¬ 
tional forms and that the existing institutions will be left behind 
as museum pieces of a bygone era. There are two propositions, 
though, of which I am fairly certain. First, any important religious 
movements in America will emerge out of the Judaeo-Christian 
tradition rather than from esoterica imported from the Orient. 
And second, the likelihood that such revitalizing movements re¬ 
main within the existing churches will increase as the churches 
return to the traditional contents of their faith and give up self- 
defeating attempts to transform their traditions in accordance with 
the myth of “modern man.” 

The scenarios for the American civil religion hinge most obvi¬ 
ously on one’s prognoses for American society at large. Only the 
most foolhardy would pretend to certainty on this score. But one 
thing is reasonably certain: No political order can stand a long 
process ol delegitimation such as the one we have been going 
through of late. There is only a limited number of possible out¬ 
comes to such a crisis of legitimacy. One, perhaps the most obvious 
one, is that the society will move into a period of general decline, 
marked both by intensifying disturbance within and a shrinkage 
of its power in the world outside. Not much imagination is re¬ 
quired to see what such a decline would mean internationally. A 
second possible outcome is a termination of the crisis by force, by 
the imposition of the traditional virtues by the power of the state. 


15 



3666 


It hardly needs stressing that democracy and freedom, as we have 
known them, would not survive such an “Augustan age’’ in 
America. The third possibility is a revitalization of the American 
creed from within, a new effort to breathe the spirit of conviction 
into the fragile edifice of our political institutions. This possibility 
depends above all on political and intellectual leadership, of which 
there is little evidence at the moment. The future of the American 
experiment depends upon a quick end to this particular scarcity 
and upon the emergence of an altogether new unity of political 
will, moral conviction, and historical imagination—in order to 
preserve the society descending from our Revolution. 

I have tried here to sketch a picture, not to preach a sermon. 
The social scientist, if he is true to his vocation, will try to see 
reality without reference to his own hopes or fears. Yet it must be 
clear that I do not view this particular scene as a visitor from outer 
space. On the contrary, I find myself deeply and painfully involved 
in it. As a sociologist I can, indeed must, look at the religious situa¬ 
tion in terms of what a colleague has aptly called “methodological 
atheism.” At the same time, 1 im a Christian, which means that I 
have a stake in the churches’ - vercoming their “failure of nerve” 
and regaining their authority in representing a message that I 
consider to be of ultimate importance for mankind. I suppose that 
a phrase like “methodological subversion” would fit the manner 
in which, again of necessity, ihe social scientist looks at political 
reality. With some mental discipline, then, I can try to describe 
contemporary America as if it were ancient Rome. But I cannot 
escape the fact that I am an American citizen and that the future 
of this society contains not only iny own future but that of my 
children. Even more important, I happen to believe in the con¬ 
tinuing viability of that eighteenth-century vision and in the prom¬ 
ise implied by that oath—in my own case, first taken freely and of 
my own volition as an adult. Both for the religious believer and 
for the citizen, the assessment that I tried to make here translates 
itself into practical and political tasks. The elaboration of these 
tasks, however, would require a different format from the present 
one. In any case, it was not my assignment here. 


16 



3667 



88-374 0-89-31 











3668 


The Family, 
Feminism 
and the 
Therapeutic 
State 

by 

ONALEE McGRAW 

£'1980 by The Heritage Foundation 

The Sex Education Controversy: 

Whose Values Will Prevail? 

As we enter the decade ol the 1980s. proponents 
ol (lie "new sex education" are mounting their sec¬ 
ond nationwide ol ten sue lo establish their vision ol 
sexuality in comprehensive sex education courses 
ui the schools The first offensive took place m the 
late '60s and early '70s. spearheaded by Mary 
Calderonc and the Sex Information and Education 
Conned ol the United States, and backed by 
policies and grams Ironi HEW. This first offensive 
was not completely successful, as many communi¬ 
ties erupted in intense controversy. When the dust 
had settled only a small number of communities 
had actually adopted the comprehensive “’new sex¬ 
uality" approach According to prominent sex 
educators Peter Scales and Sol Gordon, who ad¬ 
dressed their colleagues at the Wingspread Confer¬ 
ence on Early Adolescent Sexuality and Health 
Cjic in June 1970 

We must stop pietciulmg that school sex education 
ahead) exists, aside hom a lew isolated programs 
little but the "plumbing and biological tacts ate 
being taught I he best estimates are that fewer than 
10 percent ot the nation s young people receive any¬ 
thing icmoiel> appioachmg adequate sex education 
in the schools 

l n The New Sex Tihu mum The Sex Educator s 
Reioifue Book, the editor. Herbert A. Otto, gives 

>6 


an enlightening exposition ol the "system of values" 
the new sex education entails. Otto, whose "cre¬ 
dentials" include membership in the Society lor the 
Scientific Study ot Sex and the American Associa¬ 
tion ol Sex Education, Counselors, and Therapists, 
defines the "new sexuality" 

Today, sexuality is seen as an important aspect of 
healthy personality functioning, as enhancing the 
quality ot life and fostering personal growth, and as 
contributing to human fulfillment ** 

Otto sums up the new sex education which em¬ 
bodies the following propositions sexual health as 
an important aspect ol total health; recognition 
lhal a multitude of sexual hie styles reflects the 
needs of a pluralistic society, open com mu meat ton 
in all matters pertaining to human sexuality—in 
and out of the classroom, including the total range 
ol sexual terminology, street language and four- 
letter words utilized as part of the teaching process, 
birth control information routinely made available, 
an emphasis on building healthy altitudes, utiliza¬ 
tion of explicit films and new teaching methods 
such as group discussion and values chudication. 
emphasis on the ink- ol values and a piesont.ition 
ol sexual life-styles including homosexual its. les¬ 
bianism and bisexuality, with an emphasis on 
understanding and the development ol non- 
judgmental attitudes hH 

In the state of New Jersey, the new' sex education 
has been mandated by the state board of educa¬ 
tion. Other states like California and Ohio are 
undergoing preparations for new statewide efforts 
to install it. With the backing of Federal funds, the 
national ETA is renewing its intensive drive to 
place sex education in America's schools. The na¬ 
tional PTA has received a $432,000 grant from the 
center for Disease Control to develop a Compre¬ 
hensive School/Community Health Education 
Project. The national ETA is operating on the 
assumption that 

Such cooperative, planned education for positive 
sexual attitudes and self-understanding can con¬ 
tribute to the prevention of many of the social and 
medical problems associated with C.n 1y pregnancy, 
venereal diseases, and emotionally crippling sexual 
dysfunctions 0 


68. Herbert A. Olio, ed . The New Sex Education The 
Sex Educators Resumee Book (Chicago. Follet 
Publishing Company, 1978). p ix 

69. Ibid. 

70. "The National PTA Coinpichcnxivc Sehool/Conv 
nuuiiiv Health Education Piojcct Report ‘ National 
PTA, 700 North Rush Street. Chicago. Illinois. 
60611 


FIGURE-8 



3669 


FIGURE-9 


MEMORANDUM FROM YALE LAW SCHOOL 


Data i 

April 21, lilt 

»i 

Vie faculty 

Pna: 

Kbart M. Bock 


I m imhle to attend tha faculty mating todmy, but X want to 
express w ri yl tlm to tha proposal that the Yala Imt school tkny mployen 
tha privilege of interviewing student* cn Imt achool premiaee if tha mploym* 
display any reluctance to hire and promts ht aco a n ia l a. 

there la no need to rehearse at length tha intellectual —[-*■ 1 -of 

tha argimants put forward on behalf of this pr o p oaal. Ocntrar to the aaaerticra 
made, hcmpa ex cus ll ty l» obviously rot an irvchangmabla condition U)a race or gmhr. 
Individual choice playa a role in hanoaaxuality; it doaa rot in raoa or gender; 
and aocietlea can haw wary Beall or vary great aaxwta of trsieriiiml lateeli'ii 
depending ipcn the V i /r aaa of ml disapproval or toleranoa ahowi. 

It la a aar* play on words to aay that homosexuality re fare to statia 
rather tlun aonduct. the etetue la defined, aa a atudent roiirdad ua at our 
laat aae tlng, by lnvol v ent in tha behavior. That behavior, it la relevant 
to cbaerw, la criminal In aany Stataa. 

The cheervetlon that the hcnoeexuala In question are our atudenta, and 
we did not Bake heterosexuality a condition of antranoa to Yale, provldM no 
praniae for the further argutnt that we nuat, for that reaaon, bar all lx 
firm or other employers that do haw an objection to broeexuality. Me do 
not make my mnber of charade ris tics that erployara Bd^it find re lew t cm- 
ditione for adnisslon to Yale, cur policies, or neutralities, d? not auto¬ 
matically beooie obligation* of wployers. 

The proposed rule does not relate to educational policy awl la there¬ 
fore beyond the legislative powers of the faculty. The rule would be a moral 
or politloal stAtenent that tha Yale lx faculty ippnm of hotneextual behavior 
so strongly that it is prepared to soy ns employer suy disapprove without thereby 
marking himself or herself es morally unworthy to appear on the Yale carpus to 
Interview students. This is a statement and a ruling so far beycnd my legitimate 
authority of the faculty that no dissenting faculty member need feel himself band 
by it either morally or legally. This action will ba a precedent Indistinguishable 
In principle from any future attaipt by a majority of the faculty to purport to 
bind the rest of ua to political positions we do not hold. 

Employers who visit Yale hove not shown themselves to be intrvaive or 
repressive on the subject of hcnoeexuality. The position of the military that 
they will not hire an avowed hcnoeexual Is entirely reasonable, and tha private 
bar has shown very little interest In the subject. Vhile moral disapproval of 
homosexual behavior would not justify offensive inquiries Airing interviews here, 
there is, in fact, simply no problem of objections! behavior by wplover* that 
require* the attention of the faculty. 

The proposal before u> la simply an atterpt to hare this faculty 
ratify haroeaxoxality, to have us state piblicly that It it immoral for society 
to have any preferenoe on the matter. I do not bellsre it is inmoral for 
society or for Individuals in it to hare such preferences. But, more importantly, 
I am sure that political statements of this uture are not tha btmlness of the 
faculty of the Yala lew school acting in its corporate capacity. Such m action 
wrongfully usee the prestige Of the entire faculty as simpart for a political 
position held only by amt. 

adoption of this proposal Is a long strp in the direction of asking 
political viewpoint explicitly relevant to eoiberahlp on the faculty. That 
ou^it not be dene. 



3670 


nvpi nnSTi jranm o>aia mu* ficure-io 

THE UNION OF ORTHODOX RABBIS 
OF THE UNITED STATES AND CANADA 
M 30 ttAMT BROADWAY 
niw took. n. r. roooa 


N44UT 

a"DOn *>tk 


svip # n *idv *a*inVi 'n 

Intro No. 1 (N,Y.C. GAY RIGHTS BILL) — V»anV yim niyV uti uan 
»B^onD in* Va* jr**PaV in>i 3 »aw no >3 mw> «'*i» Vd Vy Void w^np ain* 
mwnvti o»iib *i« V*oi*«p »»*on *nanVi *V"ja V»an mi y»ax» **ojixp 
,V"»ti V»an 112 y^axaVi nyaxna nyi oViki m>nV ohd 

OiJ'T»nn >w oi-* Vm Vrn »o>oV noiV 'yaw Vao oTpso *a» 73 idd 

o’ow qv inpVi oVixa nk kVdV V”yan 111 *o oi*a Vnn V»aaiKpa Vr *B*DKpn >0 
nno»V fii^D -jona -iwe ninnt 'n naym Va eiid 'n oy® Q*oy;i VaV nuiw 

♦ pp © , 7 >aV oa inn» 


mapi n»T 3 n Pizim D>mn mns 


4 nr*£jl‘'i f '-2J 

nyaTiu i»kd *ax am 
VniD 


^’(fi] ,> d -jUV 

V»>D«n"p nwo am 
K*W3 


ENGLISH TRANSLATION 

In reference to Intro No. 1 (the pending N. Y.C. "GAY RIGHTS"Bill), 
we hereby declare that It Is a sacred obligation upon every person to do 
everything in his power to influence each and every member of the City 
Council to vote against that bill. 

We demand that every City Councilman be present in the Council chamber 
during the vote and that he vote against the bill. 

We request all those who heed us to attend the hearings of the (General 
Welfare) Committee at City Hall, beginning on Tuesday, February 22, 1983; 
to fill the galleries and thus to demonstrate for all to see that G-D's people 
loathe all that G-D abominates. May this month that marked a turning point 
in our history from tragedy to joy, be turned to joy for us as well. 



3671 


Library of Congress Caialoging-in-Publicaiion Data 

Ciider, George F , 1939- 
Men and marriage 

Rev ed of Sexual suicide 1973 Page 98 

Although the Williamsburg sociologists and economists will 
never <k knowledge it, the U S does not suffei significantly horn a 
problem of rare or of poverty Out problem is fai worse a crippling 
plague of bioken families The best way to alleviate it is to offset the 
influence ol pet verse welfare and tax incentives tluough economic 
giowth and child allowances Tht'ie is no othei way 

I tonic ally, however. the so< lologists aie coirec t on one important 
point They are right that the wreckage of the ghetto and beyond 
cannot be explained oi solved by economic incentives and support 
systems alone, particularly those focused on the ghetto itself 
Together with the punishing combination of tax penalties and 
welfare benefits, the lower-nuddle-dass family, black or white, must 
try to steer ns children through a treacherous cultural arena in 
which traditional roles and disciplines are under continuous attack 
Teachers, textbooks, television programs, and films all tend to show 
heavy feminist influence Sex-education courses take fornication for 
granted, deny the differences between the sexes, and even arouse 
unnecessary fears of homosexuality in normal boys Contraceptives 
aredistributed widely without parental consent Religious values of 
abstinence and sacrifice give way to "values clarification” and feel¬ 
good moral codes The only clear moial imperative conveyed by the 
usual text in social studies is the bogus "crisis" of overpopulation 
and the need for small families 

Since these pressures pervade the society, mobilizing against them 
can be a new "unity,” joining all races and creeds across the country 
What is needed is a broad effort, embracing churches, schools, and 
businesses as well as government, to restore the primary of family 
values Out-of-wedlock births should be delegmmized again, and 
marriage with children restored to its necessary centrality m our 
national life 

Most crucial of all is the role of the churches Several sociological 
studies have shown that churchgoers have sharply lower levels of 
illegitimacy and divorce than others in the population The prob¬ 
lems of the American poor are most fundamentally moral and 
spiritual As Margaret Mead insisted, stable families—with long 
time horizons and a resistance to the buffeting of life’s inevitable 
troubles—ultimately depend, in all societies, on the reinforcement 
of religious beliefs and ceremonies . 14 Without a strong religious 
culture a secular bureaucracy, w ith us rationalizing ethic, erodes the 
very foundations of family life and thus creates the very moral chaos 
it ostensibly combats. The effort to inculcate ethical behavior with¬ 
out religious faith seems one of the great fiascoesof the modern age 
If the established churches are truly concerned with the problems ol 
poverty, they will abandon their current tendency to serve as shills 
foi the demoralizing materialism ol the welfare slate and retain to 
their paiamount role, giving moral and spiritual guidance to the 
poor, and to all American society 


1 Quoted tn The Negro Family, A Case for National Action, as reprinted in Lee 
Rainwater and William L Yancey, The Moynthan Report and the Poltttcs of 
Controversy (Cambridge. Mass MIT Press. 1967), p 63 


FIGURE-11 



3672 


SOCIETAL RIGHTS AND HOMOSEXUAL RIGHTS 
ANALYSIS OF A CONFLICT 


Presented For Consideration By The 
Commission On Legislation And Civic Action 

Of The 

AGUDATH ISRAEL OF AMERICA 


Prepared By: Dr. Bernard Fryshman 
May 28, 1985 


FICURE-12 



3673 


- i 


I. INTRODUCTION 


Admittedly, the pleas come properly clothed... 

Words like "rights," "discrimination," and "minority" trigger all 
the expected responses; appeals to fairness, to compassion, and 
to reason produce all the right reactions. It doesn't seem to 
make a bit of difference that empirical evidence contradicts the 
contention of our homosexual friends that they constitute an op¬ 
pressed group deserving of special attention. 

We remain entangled in a web of simplistic assumptions, unexamin¬ 
ed hypotheses, and glib non-sequiturs; our critical faculties dul¬ 
led by an onslaught of noble sounding words. 

The ensuing support was quite predictable 


Some legislators anxious to curry favor with a powerful, special 
interest group found refuge in the intellectual framework develop¬ 
ed. Well-meaning citizens unable to delve beyond the facade of 
reasonableness projected by homosexual advocates took up the cause 
and similarly pressured their own political representatives to 
support "gay rights." And,truth-to-tell, there are many decent 
legislators who sincerely believe that society will not suffer 
any harm should the proposed changes come to fruition. 

It is difficult to dispel the effect of a simplistic call for "gay 
rights,” especially when faced with an impatient and largely un¬ 
sympathetic press. So much so, that decent citizens see little 
if any reasoned opposition to the strident cries of tie homosexu¬ 
al community. 

But all is not lost 


Parents, religious leaders, courageous legislators and ordinary 
citizens who cherish traditional values have let themselves be 
heard - often in the face of threats of violence. This effort has 
suffered for lack of material which carefully examines and rebuts 
the claims of the "pro-gay" advocates. Nor has there been a con¬ 
cise presentation of the reasons that so many decent people are 
vigorously opposed to creating special "rights." 

It is hoped that this piece will encourage others to produce si¬ 
milar expositions of the issues involved, and ensure that quiet 
reason and controlled debate will govern the battle over "gay rights." 



3674 


- 2 - 


II. AN EXAMINATION OF SOME CONTENTIOUS, ASSERTIONS, AND TRUTHS 


Homosexuals do not: constitute a "minority* 1 

Homosexuality is not characteristic of a minority, quite unlike 
race which is. Homosexuality is a behavior pattern, and practition¬ 
ers have no call upon society for special consideration or sym¬ 
pathy. 

To help put the matter into perspective, we might en¬ 
vision a time when individuals who engage in polygamy 
(ox incest) might organize, allow themselves to be 
arrested on behalf of their "orientation" and then 
play on the sympathies of a kindly populace to come 
to the aid of this new "minority " and its "rights". 

It is, of course, correct to say that there are fewer homosexuals 
then there are normal people, but in view of the fact that the 
interaction that most concerns parents is that between young im¬ 
pressionable boys and older sophisticated adults, the word "mi¬ 
nority" loses much of its meaning in this respect as well. 

Nobody is discriminating against homosexuals 

Unlike racial minorities whose physical characteristics distin¬ 
guish them from the majority population, and unlike members of 
some religious communities whose garb, practices and surnames of¬ 
ten identify them as such, there is no inherent way to identify 
any given person as a homosexual. That being the case, how can 
one deny employment or otherwise discriminate against an undeclar¬ 
ed homosexual, even if one wanted to do so? Indeed, homosexuals 
occupy positions at all levels of the economy, in every industry, 
and in most staid and proper environment. 

What homosexuals are seeking is not jobs 

The homosexual movement is not requesting the right to practice, 
in private, a certain life style. Rather it wants society to 
attest to this behavior as acceptable and legitimate. Homosexuals 
want to be able to proselytize and induce others to join them? to 
convince younger people "homosexuality" is a way of life. 

Even a casual perusal of "gay" literature and writings indicates 
that they are looking to have society define this deviant life 
style as a normal alternative. To use their words, they want to 
be able to convince all elements of society - even children - that 
"gay is as acceptable as straight." 

But they will welcome "Affirmative Action" for homosexuals, nonetheles 

Although they have not suffered discrimination in the past and al¬ 
though their goals are not job oriented, it is clear that homosexu¬ 
als will not be adverse to taking full advantage of affirmative ac¬ 
tion programs which will inevitably follow passage of any "gay 



3675 


3 - 


rights" bill. Some pro-gay groups, look forward to the time 
when employers, including parochial schools, private camps, and 
youth centers, will be forced to maintain records that homo¬ 
sexuals have been hired in numbers consistent with their pro¬ 
portion of the population. 

Whether or not any given "gay rights" bill expressly requires af¬ 
firmative action is completely besides the point. We have seen 
court ordered affirmative action programs follow closely on the 
heels of other equal rights legislation, and the homosexual com¬ 
munity will not be long in demanding affirmative action to remedy 
(claimed) past discrimination against them. Certainly, the eco¬ 
nomic and legal pressure being exerted even now to induce text¬ 
book publishers to present homosexuals in a favorable light is one 
indication of what we can expect. 

The views of a member of the Black community regarding all this 
are instructive. 


N.Y. Amsterdam News / Sat. JUNE 4, 19*3 — ID 


Gay Lib, another white ploy? 


f>ear Editor 

Tw« people, both qualified, go for a job 
One is Black, the other is white Who gets 
the job? You got it' 

Now comes affirmative action If the 
Black man doesn't gel the job, the 
personnel manager has to explain, in 
writing, why not Nobody likes to do that — 
*© for the first lime a Black man gets a 
chance. 

New comes gay tirMa Black man and 
<|6ay> white man. both qualified, apply 
Now the personnel officer thinks reject 
the Black — have to explain why, in 
writing. Reject the white — have to 
explain why — in writing Might as well 
hire the while 1 

Get that Mr Sciple <or is it Simple** 
Gay rights comes m, affirmative action is 
out' Of course you don't think a white man 


would put on a ISe earring to pose as gay 
and get the law on his side Man, 1 know 
plenty of whites who'd wear nothing but an 
earring to get a job over a Black man' I 
said it before and I'll say it again Lots of 
whites support gay rights because it wiU 
mean affirmative action for them also 1 
Another thing. I’m sick and tired of every 
Tom, Dick and Harry getting in on the 
persecution game You want lo he a homo 
— fine But then don’t come crying drv 
cnrmruil ion. when you guys are living high 
off the hog. good jobs, and nuhndy bother* 
mg you unless you walk around with one of 
them dumb earrings 
Skm color doesn't go on and off like an 
earring, and we thank you very ktmJ1y not 
to cheapen our struggle for freedom by 
saying your case is the same as ours. 

Yours truly, 
1-orey Sams 



3676 


4 - 


Shouldn’t they have the right to live "as conscience dictates?” 

It would require a major intellectual tour de force to place a 
behavior pattern such as homosexuality into the category "as con¬ 
science dictates". Indeed even in the case of religious practice/ 
an area specifically singled out by the Founding Fathers for special 
protection and consideration, society reserves the right to restrict 
practices it feels are repugnant or threatening. The example par 
excellence is the practice of polygamy by certain religious groups - 
now against the law. 

Nowhere is the right to practice homosexuality "enshrined by law"; 
there is no right to practice "as conscience dictates" - and there 
is certainly no justification for society to view as "legitimate 
and normal" a practice which, until very recently, was against 
the law! 

An effort is sometimes made to characterize homosexuality as but 
another "life style" - just as religion, creed, and belief are 
"life styles". Actually of course, religion, creed, and belief 
are legally, philosophically, and practically quite different from 
a "life style" or behavior pattern". 

Homosexuals already have the Freedom to Practice 

Court decisions have established unequivocally that private homo¬ 
sexual activities between consenting adults are not in violation 
of the Law. "Gay Rights"bills, then, are not necessary to "get the 
government out of the bedroom".* Having established that the 
government not interfere with their freedom to practice, they 
seek to ensure access of avowed homosexuals to positions which 
bring them into contact with an unwitting (and unwilling) 
citizenry. 

The main area of contention between advocates and opponents of 
"gay rights" is whether admitted homosexuals should have the 
right to influence children to their perspective. The following 
will highlight some of the thinking of these opponents. 

Consider, for example, the case of jerry the school bus 
driver, a homosexual, who insists on the right to 
M come out of the closet" and also continue to serve 
as a bus driver, even while openly advertising his 
aberrant life style. His young charges might then come 
to think that homosexuality is not guite as terrible 
as people thought it was because after ail, "Jerry 
the bus driver does It too." 


* But not entirely. Our system of government is value based, and 
there are behavior patterns which we as a nation can decide we 
cannot condone. The Constitution, no less than any other social 
contract, enables us to place restrictions on an individual's 
"freedom of action". These restrictions, incorporated into law, 
can restrain an individual's "freedom" - even if action takes place 
in one's own home. Incest is a perfect example of a practice which 
is against the law. Homosexuality, until just recently also fell 
into this category. 


3677 


- 5 - 


It goes without saying that individuals with a propensity 
to other aierrati ve practices should not be permitted to 
interact with impressionable children . Children may 
c oote to respect them as decent, normal human beings, and 
by transference, come to view their aberrative practices 
as normal , as well . 

Homosexuals aren't denied Freedom of Speech and Expression 

Homosexuals constitute a powerful, influential movement; they are 
free to run a "Gay Rights Parade"; to publish magazines, books, 
and newspapers; and to run openly for public office. It comes 
with poor grace for homosexuals to claim that they have been denied 
freedom of speech and expression. Indeed those who have tried 
unsuccessfully to publish views opposed to gay rights would claim 
that sometimes quite the reverse is true. 

Nor is the above list an exhaustive one. Homosexuals have un¬ 
limited free access to the market place of ideas. Television, 
movies, libraries (including the children's!), and discussion 
shows are but a few of the other vehicles used by homosexuals 
in projecting their views. Since members of the public are free 
to accept, reject or ignore this material, there cannot be any 
basis for challenging their constitutional right to protect 
their views in any of the above ways. 

Claims that homosexuals have been denied freedom of speech and 
expression are patently absurd. 

A limitation which is in effect 


The Constitution guarantees everyone freedom of speech and 
expression. It doesn't guarantee that a declared homosexual 
be allowed to occupy a 30 b which would force children to be 
exposed to beliefs and ideas which are destructive of the 
values instilled by parents. There is,after all,a public 
interest in protecting children. Thus, while the courts have 
been extremely reluctant to curtail the publishing activities 
of certain pornographers, they have supported laws which force 
newsstands selling certain material to display them in a manner 
which makes them unavailable to children. 

No doubt there is a clash of interests. Freedom of speech is, 
after all, one of our most cherished rights. But the need to 
protect children is no less a societal imperative. So that it 
is perfectly in order for society to ensure that certain sensitive 
positions not be filled by an individual who would use his/her 
job as a vehicle to advocate behavior which is at variance with 
the interests of society. Fortunately there is a way out of this 
impasse. A homosexual who doesn't declare his propensity has 
access to each and every position available. As noted earlier f 
discrimination simply doesn't take place for the undeclared 
homosexual. 



3678 


- 6 - 

To reiterate,a compelling State interest dictates that there be 
a limitation to employment for individuals whose very act of 
declaring himself to be homosexual can sometimes result in the 
proselytizing of young people. 

This limitation is not arbitrary, nor capricious, nor malicious. 
Just one example will suffice to illustrate why society dare not 
provide a conduit for homosexuals to spread their views and 
attitudes to individuals - among them children - who can not 
assimilate these ideas in a mature manner. 


A person enters a hospital in a 
defenseless state/ whether he/sh 
from physical illness, mental ill 
whether or not with associated pa 
consumer of hospital services is 
beset with' anxiety, fear, depress 
a feeling of helplessness. Lonel 
boredom are but two other factors 
car. convert an alert adult to an 
manipulated patient . Children in 
are all the more susceptible to a 
external influence. 


relativel 
e suffers 
ness , 
in, the 
usually 
ion and 
iness and 
which 
easily 
a hospit 
ny and al 


y 


al 

1 


By virtue of a "gay rights" bill hospital 
employees could openly identify themselves 
as homosexuals; they could, in conversation, 
advocate their ”alternate lifestyle" , they could 
join their colleagues in cultural groups, they 
could advertise their activities and views on 
hospital bulletin boards, use hospital facilities 
for seminars and the like. Each act would lend 
stature to a heretofore * despised perversion' 
and because of their authority in a hospital 
setting, they would be in a position to influence 
numerous malleable people in their charge . 


Consider the child watching his parents defer, 
respect, obey and even honor a doctor who 
openly identifies himself as a homosexual . 

Does this not seem to presage a decrease in 
the distaste and aversion to the very concept 
of homosexuality that used to discourage 
experimentation and involvement of young boys 
in this practice? 



3679 


- 7 - 


III. THE NATURE OF THE CONFLICT 


Homosexuals already have all the rights they are entitled to 
as citizens of the United States. They do not, of course, 
have the approbation of society for their deviant practice; 
they do not have the cachet of normalcy and legitimacy. And 
they do not, as yet, have the ability to occupy any and all 
jobs even while openly declaring themselves to be homosexual. 

Not withstanding the rhetoric, then the struggle is not 
one of giving homosexuals their "rights". Nor is it one of 
jobs. For the undeclared homosexual there is no discrimination 
and there are no changes which a "gay rights" bill would induce. 

It is less than honest for advocates of a "gay rights" bill to 
characterize this kind of legislation as being needed to help 
the undeclared homosexual. Rather the intention is to enable 
individuals to publicly identify themselves as homosexual, 
to project their views and indeed to proselytize and still 
retain the right to any and all jobs, no matter how sensitive. 
Society has moved to the point where publicly declared homo¬ 
sexuals have unfettered freedom of speech; society has moved 
to the point where undeclared homosexuals have access to any 
job. The only limitation society has kept in place for the 
protection of children is to restrict access to certain kinds 
of employment for declared homosexuals. 

This is the precise issue which separates those of good will who 
oppose "gay rights" bills, from those who support such legislation. 
Of course the homosexual movement has a much broader agenda. For 
them such a bill would be a further means of pressuring society 
into placing an implicit stamp of approval upon a practice which 
most people view as a perversion. Provided this narrow area 
of difference between two camps is kept in mind, the emotion 
this issue sometimes raises, can be avoided. 



3680 


- 8 - 

IV .*GAY RIGHTS^LEGISLATION WOULD HURT CHILDREN 


Children: 1 Impressionable, Malleable, and Gullible' 

Consider that children - especially young boys - are curious* 
they experiment, they grope, they are adventurous. Boys 
are impressionable, malleable and gullible. Boys look up to 
the men around them - especially men with authority, no matter 
how meaningless this authority is to the rest of us. 

Our children view society - and what is decent and moral - 
from a perspective different than ours. We were raised in 
a society where decent people reacted with revulsion at the 
mere mention of certain practices. As youngsters, we could 
not conceive of students living in co-ed dormitories, of 
businessmen being served by naked waitresses, or of medical 
students eating human flesh. The unthinkable is now the 
ordinary, the accepted, the usual. We are not shocked, we are 
not outraged - even though we were conditioned by the mores 
of an earlier age. Now consider children - whose minds are 
filled with ever-expanding vistas of all kinds, will a child 
brought up in the'80*s view anyting as being "unthinkable”? 

We adults will likely continue to regard homosexuality as a 
perversion, an aberration, an abhorrent, unthinkable practice. 
Will our children - if society stamps homosexuality as being 
'acceptable *? 

Puberty brings with it pressures, trials and vexations which 
can be challenging and confusing. The fact is, of course, 
that most young boys pass through this period without harm. 

It is also a fact that "fear of sin" does not always suffice 
to keep a young boy on the straight and narrow. That more young¬ 
sters do not experiment with homosexuality is often due only to 
the fact that society has labelled it a perversion, an abnormal 
deviation, an unnatural abberation. 

Should we now label homosexuality as an acceptable way of 
life; should we permit homosexuals to promote their way of 
life; does anyone doubt that there will be vastly increased 
homosexual activity among young boys? 



3681 


- 9 - 


Children: Exposed to influences all around them 

Nobody is immune to exposure to homosexuals. The most sheltered 
child is in contact with teachers, doctors, male nurses, inspectors, 
janitors, cooks, deliverymen, repairmen, bus drivers, gym instruc¬ 
tors, neighbors, dentists, storekeepers, cleaners, park attendants, 
taxi drivers, meter readers, landlords, tenants, police officers, 
lifeguards, counselors, maintenance workers... 

We are somewhat secure that none of the above people is currently 
able to proselyti 2 e, to promote homosexuality, or to dissipate 
the aura of disgust which decent people now feel towards homo¬ 
sexuality. Should the law change, however, they will be free to 
reach our children with their view that there is nothing wrong 
with homosexuality. 

Children under the influence or control of local officials could, 
willy-nilly be exposed to views and pressures completely at variance 
with the ideas parents try to instill. Surely society cannot allow 
young people to be exposed to ideas and practices which might 
cripple them for life: 

Consider susceptible young men and women dis¬ 
cussing their emotional problems with psychi¬ 
atrists, psychologists and counselors who 
happen to be homosexuals . In view of the 
fact that there is scientific evidence that 
homosexuality can he induced, are not the 
possible outcomes of this new policy harrow¬ 
ing? 

Can parents continue to entrust physically 
ailing children to a hospital which might 
result in the children emerging with bodies 
healed and minds warped? 

Hospitals have traditionally taken steps to 
protect females against the possible attack 
of uncontrolled male heterosexual individuals . 

Have hospital staffs been alerted to the fact 
that there are homosexuals whose attraction 
to men and to hoys is such as to cause them 
to act in an uncontrolled manner? To put the 
problem into extreme perspective, will hospitals 
be forced to hire male homosexual nurses? 



3682 


- lo - 


Homosexuals: 


proselytize without really 


Note that for a homosexual who serves as a role model for 
children to spread his way of life it is not necessary that 
he actively proselytize: 


Jerry, the bus driver, is friendly with the Aids 
some of whom idolize his ability to manipulate a 
bus and control a busload of people . Jerry need 
not say to the Aids, "Why not try homosexual 1 ty - 
it’s fun"; he only has to say in passing, "What's 
wrong with homosexuals? I'm a homosexual." For 
some children/ that kind of comment is more than 
enough. 


Nowadays of course, Jerry would not dare make that 
kind of statement. But in an atmosphere created 
by passage of a “g ay rights" bill he would be able to 
say it with impunity. The number of prestigious 
people who will "come out of the closet", the 
" couples" who will openly live together; the 
schoolbooks which will project homosexuality as an 
acceptable alternative will play havoc with children's 
minds. Certainly the negative characteristics of 
homosexuality will be no more. 


The examples go on and on - homosexuals who at present pose no 
danger, but whose "coining out" could devastate some children 
should the law be changed. 


Diana is an outstanding nurse in a busy dental 
practice. dll the Aids love her - especially 
the 10 and 12 year olds who idolize her for 
her efficiency, and for her beauty. One day 
Diana comes into the office wearing a button 
that says "Lesbian love is true love”. Under 
current law, she could be asked to leave; should 
the law be changed, there is no way Diana could 
be dismissed - or stopped from influencing those 
young patients that continue to come to this 
dentist. 


Is it not the disgust, the societal labeling as perversion, the 
fact that normal people everywhere consider these practices 
as deviant, as abominations, and as abnormal that is perhaps 
the greatest protection for our children? Is this not what 
differentiates, in the minds of some young people, the sexual 
experimentation of one kind that they do engage in, and homo¬ 
sexuality which remains largely untouched? 



8683 


n - 


Homosexuality can be induced 

Investigators have been grappling with the problem of what induces 
homosexuality for well over a generation. There is a respected 
and responsible school of thought which brings compelling evidence 
that homosexuality can be induced. Heterosexual behavior is, after 
all, natural and dictated, in large part by the biological instincts 
of each human being. But only in large part. There is a not 
insignificant portion of the population which remains heterosexual 
only because at critical times in their development the societal 
aversion to homosexuality prevents them from following propensities 
in that direction. 

Indeed, there is ample evidence that perfectly normal children can, 
with the wrong kinds of influences, be induced to become homosexuals. 
We will note only a few authorities on the subject: 

Dr. Laurence J . Hatterer of the Payne Whitney Psychiatric 
Clinic at Sew York Hospital; "Identity of gender and erotic 
response is formed over a lifetime of experience including 
sexual patterning and imprinting " (quoted in New York Times 

A/18/79) . 

Dr. William H. Masters and Virginia E . Johnson reported on 
their success in reversing homosexual!ty in patients 
("Homosexuali ty in Perspective " (1979). In an NBC *Meet the 
Press 1 Interview shortly after , they were quoted by UPI - 
4/23/79 - as saying "He are and we are not genetically 
determined to -be heterosexuals; we* re born man, woman 
and sexual beings , We learn our sexual preferences and 
orientations ." 

Dr. A. Nicholas Groth, Clinical psychologist, director of 
the sex offender program at the Connecticut Correctional 
Institution at Somers (quoted in the New York Times, 1/4/83) 
"said that 80% of the sex offenders he has studied had 
themselves been sexually abused as children ". 

There is vast scientific literature on the subject supporting the 
thesis that homosexuality is not genetic in nature, but is rather 
an acquired behavior. The following is but a representative sample: 

Gender and Disordered Behavior - by Edith S. Gromberg and 
Violet Franks (Brunner/Hazel, New York, 1979); and New 
Directions in Childhood Psychopathology - by Saul J. Harrison 
and John F. McDermott, Jr. (International Universities Press, 

New York, 1980). 

A recent review article entitled "Adolescent Homosexual 
Patterns: Psychodynamics and Therapy “ by Lillian H. .Robinson 

(pages 423-436 in Adolescent Psychiatry Vol. VIII , 1980) is 
helpful, partly because of a rather extensive bibliogzaphy. 

Among others Dr. Robinson reports on the work of Dr. S. Fraiberg 
("homosexual conflicts in adolescence m - in S . Lorand and 
H.I. Schneer , eds. Psychoanalytic Approach to Problems and 
Therapy . New York: Harper, 296iJ who concludes that "there 

is a good possibility of changing the orientation while 
anxiety and guilt about homosexual tendencies are still 
present ." 



3684 


12 - 


With so much scientific evidence for the thesis that homosexuality 
can be induced, we must question why we are rushing to make a change 
in societal mores which could conceivably induce large numbers of 
young children to homosexual experimentation* Without question 
we are risking the emotional health and stability of young people. 

Children as an ’Endangered Species * 

In view of the fact that there is a strong body of opinion 
that homosexuality can be induced in a child, it would seem 
that any change in the status quo be postponed until such 
time as there is unequivocal scientific evidence that children 
will not be adversely affected. 

Before building a dam, we must ensure we will not 
destroy the habitat of a rare fish ; to construct 
a building, we must submit an environmental impact 
statement; to locate a water sewage treatment plant, 
we dare not disturb a site of archaeological importance. 

Some people propose to alter the total psychological and 
sociological climate in our society. Should they not first 
establish there will be no damage to that most endangered 
species of all - young children. 

Admittedly, Homosexuality is not che only danger 

A teacher or other adult advocating (in its broadest sense) ’free 
love' should certainly not have access to impressionable individuals. 
But even if a child is somehow diverted into this kind of behavior, 
the permanent consequences are nowhere as severe as they would be 
were he to adopt a homosexual way of life. 

Free love leads to immorality and to licentiousness. But 
practitioners of free love can ultimately marry and raise normal 
families. A person who becomes a homosexual has been crippled 
in a way which medical science has, as yet, been unable to 
address. 

Furthermore, the heterosexual does as a rule not proselytize. 

Every child is the offspring of heterosexual individuals 

and these individuals are anxious that their children be brought 

up to be a normal heterosexual person. 

The homosexual, however, to justify his activities or practices, 
must try to establish the legitimacy of his/her views and there¬ 
fore will actively seek to project them on others be they adult 
or child. In other words heterosexuals have no need or desire 
to project their views of proper sexual behavior, whereas homo¬ 
sexuals do. Much more protection against homosexuals, therefore, 
is necessary than the average normal human being. Homosexuals 
have successfully breached virtuallly every area of adult society. 
Does anyone think our young people will be immune? 



3685 


- 13 


The Civil Service as a special case 

The recently issued Executive Order 28 (in New York State) is 

being watched with disquiet even though the number of known 
homosexuals on the State payroll is not very large. Will 
homosexuals begin to drift to State employ? Will they remain 
circumspect in their actions pending passage of statewide 
legislation? It is too soon to tell although the possibilities 
are harrowing... 

As a result of this Executive Order, homosexuals are protected 
on the job. They can identify themselves as homosexual; more, 
the authority inherent in their position will inevitably transfer 
to an acceptance of homosexuality as normal and acceptable. They 
will be free, in the normal course of conversation, to extoll 
the virtues of homosexuality; they will be able to organize the 
employee groups to advocate their "way of life". Far from 
protecting a "private way of life, 11 we will have permitted homo¬ 
sexuals to proselytize openly, and with impunity . 

The State intrudes on the personal lives of all its citizens. 

One cannot, for example, refuse to educate his/her children 
in a manner the State specifies* Inspectors, state health 
officials, and the police can enter a home under certain 
circumstances even over a parent's most strenuous objections. 
Children, the needy, the ill, and small businessmen are but 
a few of the categories who must sometimes rely on the good 
will of state employees for their well being. 

Since all State employees can indicate and advocate their 
affectations while on the job to children (and some adults) 
who are easily influenced, the state becomes an "instrument 
of coercion of belief or thoughinHihe"woFst way imaginable . 

This bears repeating. Individuals, through the authority of the 
state, have access to a home; children can be exposed to people 
who, in a myriad of ways, would be free to try to convince them 
of the benefits of a homosexual way of life. 

The State may become the vehicle through which defenseless citizens 
are exposed to avowed homosexuals whose ideas and views they do not 
want to hear. In so doing, we will have deprived the people of some 
of their precious freedom and rights l 



3686 


- 14 - 

V. SOCIETY HAS AN OBLIGATION TO ACT AFFIRMATIVELY TO PROTECT ITSELF 


This perhaps is the most difficult concept to project to fair it 

minded individuals. Yet,, it is not enough to fend off gay rights 
bills; society must recognize its obligation to actively oppose 
those who would change it in an unacceptable and unpredictable manner. 


Long cherished as an inherent characteristic of our democracy 
is the right of parents to raise children as they choose. An Y 
action which forces children to be exposed to beliefs or ideals 
which are destructive of the values instilled by parents, deprives 
parents of their rights. 


Society has a right and an obligation to limit the ability of deviant 
groups to proselytize. Just as society quarantines the bearers 
of certain diseases, thereby restricting their freedom, society 
must prevent the spread of this anti-social pattern to protect 
itself. 


Society must not only limit forces which would destroy its 
structure; it is perfectly proper for society to promote a life 
style which it deems necessary to its preservation. Thus, society 
can advocate the benefits of child bearing and rearing within the 
family structure. This advocacy in no way threatens those who choose 
to have children out of wedlock. But clearly, society would not 
allow advocates of the latter to project their views to children 
in a classroom. 

Society cannot condone certain practices 

There is an intellectual climate developing which makes it difficult 
for society to interfere with the private behavior of its citizens. 

The recent legalization of consentual sodomy is one indication of 
the direction in which we are moving; it would not be surprising 
to hear voices defending the rights of individuals to practice 
incest, bestiality and necrophily - behind the bedroom walls. 

’’Keep the government out of the bedroom" is the cry, and only the short 
sighted will doubt that at least some of these practices will be 
ignored by the law (if not legalized). 

But society cannot, ever, consent to any of these "private" actions, 
should they come to its attention. We can, without too much diffi¬ 
culty, envision the law being changed so that private incest is no 
longer forbidden (a change which would parallel the legalization of 
consentual sodomy). 

Would we then feel that government should ignore groups advocating 
incest? Would we permit individuals who practice and advocate 
incest to have jobs which bring them into contact with young adult 
children? 

The analogy between homosexuality and incest is strong and meaningful 
and should be kept in mind when addressing the question of special 
recognition and expansion of privileges of homosexuals. 



3687 


The Chairman. Our next panel will be made up of two distin¬ 
guished persons, Mr. John Clay and Mr. John C. Roberts. Mr. Clay 
is representing Lawyers for the Judiciary, a Chicago-based organi¬ 
zation with 700 members; and John Clay is a partner in the Chica¬ 
go firm of Meyer, Brown & Platt. Mr. John Roberts is a professor 
of law and dean of the DePaul University College of Law, and with 
them, but not giving an opening statement, is John Boley, who I 
understand is the principal author of a report that their group has 
issued on Judge Bork. 

Gentlemen, would you stand to be sworn? 

[Panel members stand.] 

Do you swear that the testimony you are about to give will be 
the truth, the whole truth, and nothing but the truth, so help you 
God? 

[Each panel members says “I do”.] 

Gentlemen, I would truly appreciate it if you could stay within 
your 5 minutes. As we wind down today, I’m going to hold every¬ 
one, including Senators, to precisely 5 minutes. 

Thank you. 





3688 


TESTIMONY OF A PANEL CONSISTING OF JOHN CLAY, JOHN 
BOLEY, AND JOHN C. ROBERTS 

Mr. Clay. Thank you, Mr. Chairman. I appreciate the opportuni¬ 
ty to appear before this committee as president of Lawyers for the 
Judiciary, a group of over 700 Illinois lawyers. We have submitted 
to the committee a basic statement of our position in opposition to 
the appointment of Judge Robert Bork. We’ve also submitted a 
longer supplemental statement which seeks to place our basic 
statement in an historical and philosophic context. John Boley, on 
my left, one of the leaders of our group, has been the principal 
drafter of this supplemental statement, and is here available for 
questions. 

We have also submitted a statement analyzing Judge Bork’s judi¬ 
cial philosophy, prepared by another one of the leaders of our 
group, Dean John C. Roberts, whom I will introduce in a few min¬ 
utes. 

We hope that these statements will contribute to an understand¬ 
ing of Judge Bork’s judicial philosophy and also of the reasons why 
so many people, including the members of our group, are opposed 
to the appointment of Judge Bork. 

We are an ad hoc group, formed a week after the nomination of 
Judge Bork. Our membership has increased to more than 700 Illi¬ 
nois lawyers in a period of less than 3 months. 

We believe that the rapid growth of our group demonstrates the 
depth of the concern of lawyers about Judge Bork’s nomination. 
We are a broad cross-section of Illinois lawyers, including members 
of large and small firms and law school professors. The majority of 
our members are from large corporate establishment law firms. 
Our members include liberals, moderates, conservatives. Demo¬ 
crats, Republicans, and independents. 

I understand that we are the largest ad hoc lawyers group in the 
country organized to oppose the appointment of Judge Bork. 

How was this possible? How did this rapid growth come about? It 
could not have happened if the people of this country, including 
lawyers, had not been very disturbed by the thought of Judge Bork 
sitting on the Supreme Court. Most of our members are not mem¬ 
bers of or active in any so-called special-interest groups. Many of 
them are corporate and bank lawyers and estate planners who 
tend not to get involved in matters such as these. In a way, our 
group really organized itself. We did not have any paid staff nor a 
single general mailing to lawyers or bar association groups. When 
the word got around in July and August that our group was being 
organized, lawyers would call in asking to join, and send lists of 
other members from their law firms. And so we grew. 

So, to repeat, I think it is very significant that this large group of 
largely corporate, establishment lawyers should have come into ex¬ 
istence to oppose Judge Bork’s appointment. 

Some of us know Judge Bork; some have been his students, his 
fellow law school faculty members, his law school classmates, his 
colleagues on the University of Chicago Law Review. Our members 
include senior partners at large law firms, some of the largest in 
the country, and young associates, fresh out of law school. 



3689 


We are not a special-interest group, and we have no one concern 
that is paramount. It is the totality of Judge Bork's judicial philos¬ 
ophy, as expressed both in his writing and in his judicial opinions 
over a period of over 25 years, and the results that this philosophy 
might produce in the many landmark cases involving constitution¬ 
al issues which he has criticized in the harshest terms, which dis¬ 
turbs us. 

Some of our concerns have been expressed and debated before 
your committee for many days now. They include the individual’s 
basic rights and freedoms, such as freedom of speech, equal oppor¬ 
tunity, the right of privacy. Judge Bork seems to think that these 
rights of the individual lack compelling force, and therefore that 
they are subordinate to power, whether that power is governmen¬ 
tal or merely the power of the majority. 

We feel strongly that, as political scientist Stephen Macedo has 
put it, Bork sees individual rights as islands in a sea of government 
powers, instead of seeing government powers as islands in a sea of 
individual rights. 

The Chairman. Please summarize, Mr. Clay. 

Mr. Clay. We think Judge Bork has it just backwards. We also 
are concerned that strict adherence to Judge Bork’s theory of con¬ 
stitutional interpretation could lead to enormous public dissension, 
if the Court reverses itself on certain major issues. 

Thank you. 

The Chairman. Thank you very much. Mr. Roberts? 

Mr. Roberts. Senator Biden, thank you very much. As a former 
student of Judge Bork's and a former colleague of his during my 
tenure at Yale Law School, I have come very reluctantly to oppose 
his nomination. Despite his broad professional experience, I believe 
that Judge Bork’s views on legal issues make him a poor choice for 
membership on the Supreme Court. And, after a careful study of 
his writings and his speeches, I feel that his views on the role of 
the Constitution in the protection of civil liberties, and on the proc¬ 
ess of constitutional reasoning itself, are so out of touch with the 
main lines of American legal thought and with the deeply held 
convictions of the American people, that the Senate ought to with¬ 
hold its consent. 

A careful reading of Judge Bork’s articles and speeches reveals 
several major philosophical positions, which have been discussed by 
a number of witnesses. First, Judge Bork does not seem to believe 
that there is any general moral basis for law, a position he dis¬ 
cussed with you. Secondly, he does not seem to believe that there is 
a general philosophy underlying the Bill of Rights itself, aside from 
the particular narrow guarantees written into it. And, thirdly, he 
believes there is only one way to find meaning in a constitutional 
provision, and that is by determining what the framers intended 
that provision to cover. 

Now much has been said about original intent and I will not 
focus on it. I want to focus on the assertion that there is no par¬ 
ticular philosophy of rights inherent in the Constitution. This is a 
startling view because we know a good deal about what the fram¬ 
ers thought and said when they were putting the Constitution to¬ 
gether and ratifying it. There has been much recent historical 
work on the intellectual origins of the Constitution, and, in my 



3690 


opinion, it is ludicrous to argue that Madison and his colleagues 
had no general philosophy upon which the Bill of Rights was con¬ 
structed. 

They wanted to create a limited government that preserved a 
whole range of powers to the people, and they carefully balanced 
the powers of our government in order to protect the individual 
from tyranny, both from majorities and from the executive branch. 

What is extraordinary about Judge Bork’s views is that they 
have led him in a series of polemical speeches and articles over a 
long period of time to condemn virtually every major line of Su¬ 
preme Court decision-making in the civil liberties area. And I 
won’t go into that list; you have gone through it many times. 

Some might argue that placing too much emphasis on these indi¬ 
vidual cases is improper and that we should look more to Judge 
Bork’s testimony before the committee and to his judicial opinions. 
As an academic, I do not accept the view that the mature writings 
of a faculty member should be cast aside as attempts to be provoca¬ 
tive and unduly theoretical. We give faculty members support and 
we give them tenure so that they can write the truth as they see it, 
and this is what they do. 

By the same token, judicial opinions are part of an institutional 
process with its own internal dynamic—the obligation to adhere to 
settled precedent and the need to forge a consensus among fellow 
judges. Therefore, I believe that Judge Bork’s true views are found 
in his speeches and writings, and they are remarkably consistent 
over the years on the major points of his philosophy. 

Some commentators have argued that Judge Bork’s views as ex¬ 
pressed before the committee snow that he is a moderate and that 
he has accepted many of the ideas that his critics have charged 
him with arguing against. I think a careful reading of this testimo¬ 
ny shows otherwise. 

As to some important elements, such as his rejection of the con¬ 
stitutional protection for obscenity, he remained adamant in his 
testimony. As to certain others, such as the protection of dissenting 
speech, his responses are confused find contradictory, in my view. 
He seemed to soften his criticism of the Griswold case and the pri¬ 
vacy doctrine that underlies it by saying that some other theory 
might support the case. But I think that a careful reading of his 
articles and speeches over many years reveals that he has con¬ 
stantly criticized the Griswold opinion without ever suggesting any 
alternative theory that he might accept. Normally, when an aca¬ 
demic or a judge criticizes an opinion or a particular doctrine and 
wants to make the narrow criticism that the particular reasoning 
is incorrect but the result is correct, they try to supply am alterna¬ 
tive theory that will be more acceptable. Judge Bork has not done 
this in any of these cases. 

The main lines of his philosophy still emerge from his testimony, 
in my opinion. He does not seem to believe in the crucial role of 
the Supreme Court in protecting the minority from majority legis¬ 
lative will except in the narrowest of cases specified in the Consti¬ 
tution. 

Now, it is possible that Judge Bork is right and that Madison 
and Hamilton were wrong on the matter of the philosophical basis 
of the Bill of Rights. It is possible that Judge Bork is right and that 



3691 


every judge with whom he pointedly disagrees is wrong—Holmes, 
Brandeis, Learned Hand, Douglas, Brennan, Powell, and all the 
rest. It is even possible that Judge Bork is right and all the other 
legal philosophers who have struggled to give meaning to our con¬ 
stitutional tradition are wrong—Rawls, Dworkin, Ely and the rest. 
It is possible that he is right and everyone else is wrong, but, in my 
view, it is not very likely. 

We can be tolerant of idiosyncratic legal views on our law facul¬ 
ties and on our lower federal courts, but their influence is greatly 
magnified on the Supreme Court. Justices should not be too far out 
of touch with the normal range of expert legal opinion or, in fact, 
with the feelings and the commitment to liberty of the American 
people. Judged by this test of fitness to serve on the Court, Robert 
Bork, talented as he is, clearly fails. 

Thank you, Mr. Chairman. 

[Statement follows:] 




3692 


LAWYERS FOR THE J UDICIARY 

1«0 South LaSalle Sctw * Room 3731 • Chiu*), Blind. 60603 • (312) 701-7066 


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Lawyers for the Judiciary vat organized In early 
July by illlnolt lavytrt oppottd to the appointment of 
judge Robert H. Boric to the United States Supreme 
Court. Tbe Committee Is expanding very rapidly and now 
numbers over 700 lawyers, representing a broad 
cross-section of tbe Illinois legal community, 
including large corporate law firms, small firms, 
individual praotltioners, lawyers working for 
governmental agencies, public Interest lawyers, and law 
school professors. 

Our members support the basic economic and 
political values of America end Include liberals, 
conservatives end moderates. 

our committee feels strongly that the appointment 
of Judge Bork la not in the beet Intereat of the 
country. 

Judge Bork'e Judicial philosophy, as stated In his 
many opinions as a Judge of the Federal Court of 
Appeals for the District of Columbia end in numerous 
articles end speeches ovtr e period of more than twenty 
years, puts him outside the mainstream of 
constitutional jurisprudence and would deny what our 
oitlsens regard as their basic, fundamental rights. 

Judge Bork Is, In fact, e judicial radical and not 
In the tradition of leading conservative Supreme court 
Justlose sueh es Felix Frankfurter, Robert Jackson and 
John Marshall Marian. It le disturbing that the White 
House, In a briefing book distributed to members ef the 
Senate, le trying to portray Judge Berk M e moderate 
and le distorting his extreme conservative view*. 


1 - 



3693 


Thar* la no aarioua question that tha Senate haa not only 
tha right but alao tha duty to lngulra into tha ldaology and 
judicial philosophy of any nominee propoaad for tha Supraea 
Court. This haa baan true ainea Praaldant Washington's 
nomination of John Rutladg* was dofaatad by tha sanata In 1799 
bacauaa Rutladg* had angtrad nsabers of tha Sonata by opposing 
tha Jay Treaty with England. Kora recently, in 1»6», Republican 
senator Strom Thurmond, now tha ranking alnority camber of the 
senate Judiciary Committee, led a filibuster In opposition to 
President Johnson's nomination of Justice Abe Portae for chief 
Justice, stating as follows) 

"To contend that wa suet merely satisfy ourselves that 
Justios Fortes la s good lawyer and a nan of good character 
1* to hold a vary narrow view of tha rol* of tha Sanata, a 
view which neither tha Constitution itself nor history and 
precedent have prascribed. 

It le *y opinion, further, that If the Senate will turn 
down thie nomination, w* will thus Indicate to the President 
and future Presidents that ws recognise our responsibility as 
Senators. After all, this 1s a dual responsibility, Tha 
President Barely picks or selects or ohooses tha Individual 
for t position of this kind, end ths senate has the 
responeibility of probing into and dsteralnlng whether or not 
h* is a properly qualified parson to fill ths particular 
position undsr consideration at the tin*." 

in it* biography of Justice Portal, Encyclopedia Britannic*' 
Brltannlca Book of the fear. .1969 stated: "Republicans saw [th 
filibuster] as a maneuver to deprive ths next prssident— wh 
might well be e Republican—-of the chance to appoint th* chit 
justice." The result of ths opposition to th* Fortaa noainatic 
was, tha yearbook noted, that for the "first time since 1799" 
nomine* for th* Chief Justice position failed to receive Banet 
approval. (It is one thing to oppose a parson's initi; 
appointment to tha Suprena Court) it was virtually unprecedanti 
to reject th* elevation to Chief Justice of s person who alrea 
was on the Court.) The yearbook also stated, in its review 
significant legal developments, that "most n.S, legal eoholr 
concluded that political factors, rather than th* quality 
Justlca Forts*' work on th* court, caused th* defeat of : 
nomination." 

In choosing Justices of the Supreme Court th# President 
the Sanata era equal partner* and just as the Freeldent prop< 
can take (and, with respeot to Judge Bork, clearly haa tel 
ideology and judlolal philosophy into account in nomlnetlr 
parson far the Supreme Court, so may th* Senate consider idee 
and judicial philosophy in giving or withholding its consent. 


-a- 




3694 


While we agree that Supreme Court Justices should sxsrelss 
"judicial restraint" and ba guided by tha "original intent" o t 
the framara ot tha Constitution, we diaagraa with Judge Bork'e 
application of those concepts. As applied by him, "judicial 
restraint" and "original intent" deny the vision of the frasers 
that tha Constitution embodies dynamic concepts such aa "due 
process" and "aqual protection" which would need to ba 
interpreted in the light of constantly changing aoelal 
conditions. 

What is alssing In Judge Pork's view of the Constitution la 
a recognition of the great spirit of liberty which animated that 
historic charter and underlies the specific constitutional 
guarantees. The framers felt strongly that there wars areas of 
individual liberty that must be protected from the aejorityi 
freedom of speech end of the press, freedom of religion, 
separation of churoh and state, freedom from unreasonable 
searches and saituree, due process of lav, equal protection of 
the lawe. Judge Bork's opinions and artielaa have exalted 
majority rule and the power of the executive branch ovsr the 
rights of minorities end individuel rights. 

Tha hill of Sights eobedisd in the first tan amendments to 
the Constitution was designed to protect the individual end 
minorities from the will of the najority. our democratic 
government is majoritarisn but with the constitutional guarantees 
of the Bill of Bights carved out as areas where the interests of 
the individual are so important that the najority will must 
yield. Judge Bork states that the constitutional guarantees must 
be interpreted narrowly to avoid the evil of the Court 
legislating its own prejudices. 

We obviously agree that the Court should not decide cases 
based on its own prejudices, but vs reject Judge Bork'e narrow, 
cramped view of tha great constitutional protections, in fact, 
his theory of constitutional Interpretation (by judge Bork's own 
admission) has bean rejected by the overwhelming majority of 
constitutional law aoholars. It has also been rejected by the 
Supreme court Justices who decided the many landmark cases 
hereinafter mentioned. These Supreme court Justices besed their 
opinions on what they considered the meaning of the greet 
constitutional concepts, including tha intent ef the framers, aa 
applied to the facts of the particular cases. 

judge Berk has bean criticised by his fallow appellate court 
judges as not exercising judicial restraint himself. See 
v. feel) . 746 p.2d 1976 (1964) and Oilman v. Evans . 790 
F.3d 970 (1964). But tha application of tha guiding principles 
is not sn automatic process. The Constitution doss not define 
these broed concepts which must be constantly applied to new 


•3 



3695 


situation* In tha light of tha grant underlying principles of 
Individual right*, liberty, a government of check* and balances 
and an executive branch with limited powers, reflecting th* 
bsllefs of the Founding Fathers that they had had enough of Kings 
and arbitrary executive power. H* are oonoarnsd by Judge Bork'e 
action In dismissing Archibald Cox a* special Watergate 
Prosecutor (subsequently held by the Federal District Court to be 
an unlawful action). We are equally or more concerned by his 
opinion that the appointment of special lndapandant fedaral 
prosecutors 1* unconstitutional, and by his rscord ss a Judgs in 
ruling In favor of tha government in the vest majority of caaes 
involving individuals and question* of access to the courts. 

We are disturbad by the injudicious nature of Judge Bork'a 
vehemently expressed statements that many of the landmark Supreme 
court eases Involving constitutional protections have been 
“unconstitutional*, "utterly specious*, “illegitimate" and 
"pernicious." 

Judgs Berk has said that tha Constitution doss not include a 
rlght-of-privacy and has criticised in tha strongest tarns th* 
whole line of rlght-of-privacy casss, including firlawold v. 
Connecticut . 161 U.s. 479 (1941) declaring unconstitutional a 
Connectlout lav making It a crima for anyone, Ineluding married 
couples, to us* contraceptives, and Ro* v. wads . 410 U.s. in 
(1973) striking down a state abortion statute. Judge Bork has 
also strongly criticised skinner v. Oklahoma . Ill U.S. 3)9 
(1942), striking down an Oklahoma statut* requiring sterilisation 
of "habitual criminals", Bheiiev v. Krasmer . 314 U.s. 1 (194B) 
declaring unconstitutional racially restrictive covenants, Harnar 
v. Virginia fit>t s._b aard of s duostlon. 33B U.S. 6S) (19««) 
Striking down a stats poll tax, University of California Board 
of Regents v. Sakha . 418 U.S. 24$ (1978) upholding th* 
constitutionality of affirmative action, and Dennis v. united 
States . 341 U.S. 494 (1931). Further, he critically attacks 
cases involving the position taken by Juetices Kolmea and 
Brandsis that speech which advocates the overthrow of the 
government, or any violation of lav, may b* forblddan poly If a 
"olaar and praaent danger" or "imminent and likely harm" is 
establlshad. Judge Bork has said that only "explicitly 
political* spasch Is protected by the Firet Amendment. He ha* 
since recanted, but how much is uncarta In, and has said that 
"morel and scientific dabata" deserve protection, bub not 
"obscenity and pornography," It is far from clear whether, or to 
what extent, literary and artietlo works would be protected. 


- 4 - 



Judge Berk hu elao crltloiaed the legislative 
reapportlonnent and one-nan, ona-vota caaaa, v. Cue, 369 
U.S. 166 (1662) and subsequent oaaaa, and En ge l, v. vltala . 370 
U.S. 411 (1662) striking down a atata law allowing public schools 
to hava state-sponsored prayer raad In class. 

Our Cosaltts* la struck by tha braadth of Judge Berk'a 
condonation. it arvooapasssa nany of tha Boat important 
constitutional daclalons of tha last thirty-five yaara. It is 
doubtful that Judge sork'a strongly held views would be taapeted 
by a respect for precedent. Ha has stated that if a prior 
supreaa court decision is "wrong" and "pernicious", it should ba 
overruled. His list of oases and settled supreaa court doetrinas 
that sight ba considered in hla view to ba "wrong" and 
"pernicious" la so long that, if hla views ware to prevail, tha 
clock ft constitutional protections would be turned back for 
•avaral decadea. The senate's previous approval of Judge Bork 
for tha Court of Appeals should not give pause to oppoee his 
appointment to tha Supreaa Court. Tha offloes are vary 
different. As a Judge of tha Court of Appeals ha was coapelled 
to abide by Supreaa court opinions and haa bean subject to 
reversal. But as a Justice of tha Supreaa Court ha would not ba 
so constrained. Ha would ba guided by hie own concept of 
constitutional interpretation and by a rather vegue deference to 

Btars deni ale . 

Judge Bork hea elao stated rather oalnously that one of tha 
vays to cure erroneous constitutional deoialone la' through tha 
proceae of appointing Supreaa Court Justieaa, It ia difficult to 
exaggerate tha confusion snd dissension which would result fron 
an overruling of tha landaark cease criticised by Judge Bork, 

Since Judge Bork could bo on tha Suprsne Court until wall 
into tha 21st Century and his radical judicial philosophy could 
offset our livas in sc aany vital areas, vs urge tha saabars cf 
tha United States Senate to vote against tha appointment of Judge 
Bork, 



3697 


[This Statement has been prepared and is released by Lawyers for 
the Judiciary as a reflective essay that seeks to put the 
proposed appointment of Judge Robert H. Bork to the United States 
Supreme Court in a meaningful historical and philosophical 
context. While the Statement has been reviewed by a number of 
members, it is obviously not possible to have all members review 
a statement of this length, and of this scope—which extends 
beyond the issue of the nomination of Judge Bork'. Some members 
may not share all of the views expressed. The Steering Committee 
believes, however, that the basic philosophy reflected in the 
Statement is shared by a large majority of our members.) 


Statement of 
Concerns for Moderates, 
Liberals, and Conservatives 


LAWYERS FOR THE JUDICIARY 
Room 3733 

190 South LaSalle Street 
Chicago, Illinois 60603 


September 23, 1987 



3698 


Table of Contents 

Subject Page 

Our Bias 1 

(Who we are, and why we care) 

America's Economic and Political Heritage 2 

(The Individual—building and minding him own 
business) 

Keeping Perspective, Usually 4 

(Americans survive their politicians and judges 
—usually) 

Nonsense and Sense 6 

(The political and ideological bickering on 
Judge Bork's nomination) 

The constitution's Ancestry * 

(A brief history, from the Greeks to the Founding 
Fathers; also see Appendix A) 

Our Constitutional Documents 10 

(The Declaration of Independence, the Articles 
of Confederation, and the Constitution—what 
they say, and do not say) 

A Tool for Listening and Acting 24 

(Now Americans can test politicians, judges, 
us, and themselves) 

A Major concern 28 

(Which presidential agendas are important, and 
which advisers' advice should be taken.) 

A Likely Concern 38 

(The nomination of Judge Bork) 

The Biggest Concern 54 

(Whether Americans believe in the Constitution. 

If not, whether they can survive themelves) 


Appendix A—Our Constitution's Ancestry (some details) 
Appendix B—Responses to Pro-Bork Arguments 
Appendix c—English Bill of Rights (1689) 

Appendix D—Virginia Bill of Rights (1776) 



3699 


Concerns for Moderates. Liberals, and Conservatives 


Like most Americans, the lawyers in our group have a stake 
in our government's decisions. Like most Americans, we are 
biased. A few of us are law school professors, or are in 
corporations, public-interest firms, or small law firms. Most of 
us are in large firms, whose primary clients are corporations or 
financial institutions. 

Our financial and personal stake in American business, and 
in America, is to us a substantial one. Our stake is our bias. 

We do not speak for our firms or law schools, and some of 
our colleagues disagree with our conclusions on Judge Bork. 

Our firms comprise Republicans and Democrats. Moderates, 
liberals, and conservatives. Catholics, Jews, Protestants, and 
others. Both men and women. But such labels and factors are 
extraneous to our work; we ignore them when we judge each other. 

If there is an entrance exam for our group, it is passed by 
any lawyer who supports the basic economic and political values 
of America. Any lawyer who falls within the traditional 
mainstream of America's conservative-moderate-liberal spectrum. 

Our views will not attract extremists, who are beyond the 
borders of such spectrum. Lawyers and courts exist for the 
peaceful avoidance or resolution of disputes. Much of our legal 
system is useless, and America dangerously at risk, when people 
resort to the extremists' tools: venom, bullets, and bombs. 

Those tools were used by left-wing radicals in the late 1960's, 
and are used by right-wing radicals today. 

We are witnessing distortion of words, and of principles, 
both by extremists and, in some cases, by other proponents and 
opponents of Judge Bork. 

Even apart from personal preferences, the members of our 
group are normally forced to not mislead or misstate—there is 
usually an able, well-informed lawyer on the other side of the 
table, to keep us honest. In this Statement we will try to give 
words like "conservative'’ and "liberal" their traditional 
meanings, not the warped meanings given to them by extremists. A 
conservative is not a "narrow-minded bigot" or "redneck" or 
"Fascist reactionary". A liberal is not a "bleeding heart" or 
"egghead" or "Communist radical". 


88-374 0 - 89-32 






3700 


Alexander Hamilton, senators Robert Taft and Everett 
Dirksen, and Justice Felix Frankfurter (appointed by Franklin 
Roosevelt, a liberal Democratic President) vere conservatives. 
James Madison (the chief drafter of the Constitution), Senators 
Hubert Humphrey and Adlai Stevenson (and his father), and Justice 
William Brennan (appointed by Dwight Eisenhower, a moderate 
Republican President) are fairly called liberals. 

The labels are, of course, only customary uniforms. On a 
few important issues, James Madison was a conservative and, on 
others, Hamilton a liberal. And Justice Lewis Powell, whom Judge 
Bork would replace, was conservative on most issues, but moderate 
on at least two of the major issues in President Reagan's social 
agenda. 

Labels also may overlap. As King George III and his 
"loyalist" Americans knew well in 1776: conservatives Washington 
and Hamilton, and liberals Madison and Monroe—and most other 
Americans—were law-breaking criminals: not just radicals, but 
traitors and revolutionaries. But our "non-Loyalist" ancestors 
were willing to take the consequences: the Revolutionary War. 

So we suggest that people be skeptical of words, including 
ours. Statements, perhaps especially those of lawyers, should be 
tested both by whether they make sense and—a most unlavyerly 
thought—by whether they "feel" right. 

Our group has not been polled on social agendas, or other 
passions of the day. Decisions on currently explosive issues 
like abortion and school prayer will affect millions of 
Americans, but we doubt that many immigrants have been drawn to 
America by its laws for or against abortion or school prayer. 
Although we urge restraint by both sides on these issues, our 
concerns are broader and deeper. 

America rests firmly on the bedrock of an economic and 
political heritage that has, as its core, the individual's 
rights, aspirations, and achievements. The lawyers in our group 
are grateful beneficiaries of this heritage. Just as it rewards 
and protects us, so should we protect it, for ourselves and for 
others. 


-- America's Economic and Political .Heritage -- 

Americans have enjoyed, and not yet lost, a cornucopia of 
economic, political, and civil rights—-and the fruit of those 
rights. For centuries these benefits have drawn immigrants here, 
to a country at the end of the rainbow * 


— 2 — 



3701 


We have come from all continents. We differ in our 
appearance, our speech, our religions, our customs. We often 
dislike these differences. Too often, “we" scorn "them", or 
"they" scorn "us", our prejudices erupt, on occasion, into 
violence. 

But we have been lucky. In our Revolution, our violence as 
lawbreakers was directed against an English king, not against 
each other. In our Civil War, which we seem still to be 
fighting, we were ravaged by violence; nonetheless, that war was 
essentially between agricultural southern states and industrial 
northern states, and between southern states and the federal 
government, not between "haves" and "have-nots". 

Except for our Civil War, we have been spared the scourge of 
further revolution. In 1787, Thomas Jefferson (the principal 
draftsman of the Declaration of Independence, and a major force 
behind the Constitution) remarked: "What country before ever 
existed a century and a half without a rebellion?" now, except 
for the Civil war, we can say "three and a half centuries”. He 
said in the same year that "a little rebellion, now and then, is 
a good thing". We Americans took his advice: we have had a 
series of little rebellions .*/ But our (at least eventual ) 
intelligent responses to them have kept our rebellions little. 

Unlike repressive nations, the United States has rarely 
faced collective, widespread violence. Host Americans have had 
more to lose, than to gain, from such violence. 

We have been smart, not just lucky. For our economic 
system we chose capitalism and free enterprise—a system 
motivated and driven by the efforts of free individuals. 

"American ingenuity" has always commanded respect, here and 
abroad. "Progress" has always been an American goal and, 
economically at least, always an American achievement. 

Our economic heritage has given us prosperity, sooner to 
some and later to others. To those who have not yet prospered, 
our heritage still offers opportunity, and thus hope. Most of us 
do not want to lose what we have, or what we at least hope to 
get. 


*J Often on labor-management disputes, like the 1886 Haymarket 
Square Riot, seeking an eight-hour day; or the 1894 Pullman 
strike over wage cute—a strike suppressed by President 
Cleveland's use of U.S. troops despite objections by Illinois 
Governor Altgeld. 


- 3 - 



3702 


We have also been smart in choosing a political system that 
exalts the individual, and that protects the individual's 
freedom--!rom interference by minorities, majorities, and 
government. The most passionate belief of our political heritage 
may be that ve revere liberty, and the rights of individuals. It 
is "Liberty", not "Order", that we engrave on our coins. This 
liberty, and these rights, also have come sooner to some and 
later to others. 

Political and social progress has rarely been an American 
goal. In this area ve have not cheered for the underdog, but 
have usually tolerated him—and sometimes have even conceded that 
he should, partly in our own long-term interest, have the same 
rights and opportunities as the rest of us. Thanks to our basic 
belief in fairness, we generally have ended up following an 
American tradition: "doing the right thing". We may not like 
it; but at some point we usually rise above our prejudices and we 
do it. 

In practice as well as theory, the line between our economic 
rights and our political and civil rights is blurred. Would our 
political and civil rights survive, in the absence of economic 
prosperity? Would we have our economic prosperity, if we lacked 
our political and civil rights? Perhaps. 

Our liberty and rights are always under siege. The assaults 
arise in large part from tensions among us and from excessive 
governmental regulation and interference—by all levels of 
government from federal to local, and by all branches of 
government: the legislative, the executive and, more rarely, the 

judicial. 

Some Americans—perhaps most, on one issue or another—think 
we need more governmental regulation. That is usually when we 
hear not about "interference", but about "support" or "freedom" 
or "rights". Whatever it is called, it is still interference. 

— Keeping Perspective, Usually — 

Since we elect the President and Congress, we Americans may 
take part of the credit for their interference we like, and must 
take part of the blame for interference we dislike. It is the 
President and Congress, working together, who tax us, regulate 
us, and spend our money—and who on any one issue go "too far" or 
"not far enough", and "too soon" or "not soon enough". They, not 
Supreme Court Justices, provide most of the federal interference 
in our lives. 

People often worry more about Presidential than 
Congressional elections. This occurs during each presidential 


- 4 - 



3703 


campaign. Harry Truman, a haberdasher, and Dwight Eisenhower, a 
general, had "too narrow a background" to be good Presidents. 

John Kennedy, a Catholic, would "listen to the Pope, not the 
people", and Ronald Reagan, an actor, would "just read his 
writers' lines". Harsh words, but sincere concerns. 

Some in our lawyer's group are grandfathers. Like many 
grandfathers, we give advice when nobody asked for it. When we 
heard those concerns from friends, we often said something like 
this: "Don't worry so much. On any one issue, each President 

has gone too far, or not far enough. But this country survives 
its Presidents. In many other countries, one person or small 
group has all three powers: to make the laws, to enforce them, 
and to interpret them—and the people are silent, and had better 
be silent. Not here. We have a unique Constitution that 
separates those powers and gives them to Congress, the President, 
and the Supreme Court. A Constitution that limits the powers of 
each branch of government. A Constitution by and for "We the 
People", that affirms the natural rights of the people-then adds 
the right to vote. And, perhaps most important, a Constitution 
that requires the government to act in accordance with law, not 
with personal views—whether those views are deeply-held beliefs 
or arbitrary whim. A President can't get too far out of line, 
because he'll get his hands rapped by Congress, or the courts, or 
the people. Trust the System. It's imperfect. It's 
frustrating. But it works." we probably bored our friends. But 
we think we were mostly right. 

The haberdasher, the general, and the actor won. Later, 
they won again. And the Catholic served long enough to convince 
us that his outlook was broad enough, and his respect for our 
System deep enough, that he would not impose his religion's 
beliefs on the rest of us. We thank all of these men. 

Since the Supreme Court's power is, by tradition, primarily 
to interpret laws, the Court normally has only a modest effect on 
our 1 ives—although occasional decisions, over two centuries, 
have been significant indeed. Americans seldom worry about Court 
nominations, or whether a vote for a President or Senator 
includes a mandate on judicial appointments. The present furor 
over "mandates" and Judge Bork is an exception. 

Judge Robert Bork has an impressive educational and 
professional background, is very bright, and is a formidably 
gifted writer and speaker. We thank him for his service as a law 
professor, as Solicitor Ganeral, and as a judge. If he is 
confirmed our country will, in the long run, survive him. 

We try to keep our sense of perspective. We do, however, 
have concerns about Judge Bork's confirmation, and the dissension 


- 5 - 


3704 


and turmoil it may foBter for a generation or two—when, as 
always, America will need stability and unity. Justices tend to 
survive, by many years, the Presidents who nominated them. 
Justices' court decisions may survive even longer. 

Our group does not object that six of the current eight 
Justices were appointed by Republican Presidents; the people 
elect their Presidents as well as their Senators. Nor do most of 
us object to the present ratio of six conservative and moderately 
conservative Justices to two liberals, although it may be unwise 
to lack mere "moderates" or to have too much of an imbalance, to 
the left or to the right. Nor would most of us—who normally do 
not get involved, and who are reluctant to get involved 
now—object to the confirmation of a traditional conservative. 

The vehicle of federal government has successfully had 
drivers who were moderates or liberals or conservatives, but it 
has needed liberals as its motor, and conservatives as its 
brakes. 

Host Americans probably agree that Supreme Court Justices 
are essential brakes in our federal government. But Americans 
should decide whether the Justices should act only as brakes.£/ 
Regardless of how they answer that question, Americans should 
also decide whether Judge Bork, or any similar nominee, would be 
merely a brake. 


— Nonsense and Sense — 

A disturbing aspect of media coverage of the Bork nomination 
is that, including in most of the comments quoted below, the 
media talks only of "Democrats” versus "Republicans", or 
"liberals" versus "conservatives". Controversy sells newspapers, 
but such analysis is misleading. Horse, the media seems to have 
adopted the extremists' lexicon: that there are no moderates, 
and that traditional conservatives and traditional liberals 
cannot be on the same side of this issue. 

Our comments may become lost among many. An article in Time 
states that by September 15, when Judge Bork's Senate 
confirmation hearings began, "hundreds of liberal and 
conservative groups will have spent more than $20 million to 
promote their sharply different pictures of Bork." A staggering 


*/ See the remarks and opinions of Jefferson, Aristotle, and 
Hamilton, in Appendix A, pages 4-5. Those remarks apply to the 
executive and legislative branches, as well as the judicial 
branch. 


- 6 - 



3705 


amount, that will pay for countless thousands of words. (Nobody 
is paying us; that displeases some of our partners.) 

Sage advice on how to listen to or read those words was 
given by Jon Margolis, Washington Correspondent for the Chicago 
Tribune . He lambasted, as "blather" and "nonsense", what we will 
hear from politicians. He said that the Democrats will say that 
the President "had no right to nominate Bork, not just because 
the judge is a conservative but because he might tip the court 
majority in that very direction", and that the Republicans will 
add "their own nonsense, which is that the Senate has to confirm 
Bork because the President nominated him, because he appears to 
be an upright fellow and because a senator has no right to reject 
a candidate just because he disagrees with him." 

As the column noted, the Constitution does not require any 
reason for either nomination by the President or rejection by the 
Senate. (The Constitution states merely that the President 
"shall nominate, and by and with the Advice and Consent of the 
Senate, shall appoint...Judges of the Supreme Court".) 

The nonsense will also arise from partial quotations taken 
out of context: a recent Newsweek article reported that a 
Republican Senator quoted from the first half of Hamilton's 
Federalist No. 76 . for the argument that the Senate should not 
have exclusive power to select Supreme Court Justices; and that a 
Democratic Senator quoted from the second half, for the argument 
that the President should not have such exclusive power. 

Many will recall the furor and filibuster that occurred 
during the 1968 controversy over Justice Abe Fortas (an 
exceptionally bright Justice and, as to skills, a lawyer's 
lawyer). Not trusting our memories for the details, we consulted 
Encyclopaedia Britannica's Britannica Book of the Year. 1969 . 
Justice Fortas, a Supreme Court Justice for the preceding three 
years, was nominated by President Johnson to be Chief Justice. 

In its biography of Justice Fortas, the yearbook stated: 
"Republicans saw it as a maneuver to deprive the next 
president—who might well be a Republican—of the chance to 
appoint the chief justice. Southerners and other conservatives 
were angered by recent court liberalism on civil rights and 
criminal law." "in July the Senate Judiciary Committee subjected 
Fortas to an unprecedented four-day grilling by hostile 
members." "The nomination was finally cleared by an 11-6 vote of 
the committee on September 17, but when the nomination came to 
the Senate floor its opponents began a filibuster. On October 1, 
supporters of the nomination failed to close the debate. Shortly 
afterward Fortas requested that his name be withdrawn, and the 
president complied." 


- 7 - 



3706 


The result of the opposition to the Fortas nomination was, 
the yearbook noted, that for the "first time since 1795" a 
nominee for the Chief Justice position failed to receive Senate 
approval. {It is one thing to oppose a person's Initial 
appointment to the Supreme Court; it was virtually unprecedented 
to reject the elevation to Chief Justice of a person who already 
was on the Court.) 

The yearbook also stated, in its review of significant legal 
developments, that "most U.S. legal scholars concluded that 
political factors, rather than the quality of Justice Fortas' 
work on the court, caused the defeat of his nomination." 

The public should not, however, throw up its hands and walk 
away. Often buried in the bickering, there is sense. It is not 
just politics. And both of Hamilton's arguments, referred to in 
the Hewsweek article, make sense. So do many of Hamilton's other 
arguments, and those of Madison, Jefferson, and other Founding 
Fathers. 


— The gg rtst i^u t -ip u lg Anyegtry — 

Our Founding Fathers worked with a clean slate, on a rare 
task: to establish the ground-rules for a new nation. 

In this bicentennial year, Americans can easily see what was 
written on the slate: copies of the Constitution will even be 
distributed through certain grocery marts and gas stations. 
Americans will also be told much about what our Founders said 
about the Constitution.*/ 


±/ We commend The Philadelphia Inquirer for its daily diary of 
Constitutional proceedings; this has been syndicated through 
other newspapers. We also commend Prudential and Phillip Horris 
and other American businesses that have paid, as advertisements, 
for Charles Mee's "Only in America" Hewsweek series of one-page 
articles on the Constitution. A good introduction to the supreme 
Court today, to the Constitution, and to America in the 1780's is 
in the The Constitution special edition of Life magazine; 
marvelous photographs, as usual, but also some informative 
text. For the 1780's and most other periods of history, we 
recommend the text and photographs in a Time-Life series, Great 
Ages of Man . A fascinating reference book, for facts, is the 
paperback The Timetables of History , which charts each year's 
events in politics, literature, philosophy, the arts, etc. 
Columbia University's Columbia-Vikinq one-volume desk 
encyclopedia is also very useful, for kernels of ideas as well as 
for facts. And many Americans already own multi-volume 
encyclopedias like Americana . Britannica . and World Book . 


- 8 - 



3707 


Americans may see little, however, about what the Founding 
Fathers had read and learned, both from the past and from their 
contemporary 18th-Century world. This can help us understand the 
intentions and values of the Constitution's drafters. 

These intentions and values have become an issue. In his 
lucid statement of the controversial concept of "original 
intention" {a proposed exclusive guide for the Supreme Court in 
deciding constitutional issues), Judge Bork has said: "It is the 
task of the judge in this generation to discern how the framers' 
values, defined in the context of the world they knew, apply to 
the world we know." We agree with his statement, though we may 
disagree with him about which "values" were deemed by the 
Founders to be fundamental ones. Further, we seem to disagree on 
whether we should consider the world that followed the 1780's. 

We may also disagree on whether the Founders "knew" a world of 
only the 1780's—or also of earlier periods. 

Today we celebrate the past 200 years. Our Founders looked 
instead to their own 16th Century and the preceding 200 years, 
and even to earlier periods. 

Is it important to know what the Founders knew? It might 
be, if we want to keep living together: in 1855, six years 
before he became President and before we lost the first of the 
750,000 Americans who died in the Civil War, Abraham Lincoln 
complained about Americans who abhorred the oppression of Negroes 
but were "degrading classes of white people": 

As a nation we began by declaring that "all 
men are created equal." We now practically 
read it "all men are created equal, except 
Negroes." When the Know-Nothings get 
control, it will read "all men are created 
equal, except Negroes and foreigners and 
Catholics." 

A recent Chicago Sun-Times/Gallup poll asked Chicago-area 
Catholics whether they feel discriminated against, socially or 
professionally; 11% said yes, but "an overwhelming 85 percent say 
no". That Is progress. 

But nobody wants to be on Lincoln's list of exceptions, or on 
any similar list 50 or 500 years from now. Americans might be 
less prone to compose such a list if they knew what the drafters 
of the Constitution knew. 

At Judge Bork's confirmation hearings. Senator Simpson has 
quoted from Rudyard Kipling, England's first Nobel Prize winner in 
literature. (We, our children, and our grandchildren have all 


- 9 - 



3708 


enjoyed Kipling.) Kipling said "All we have of freedom, all we 
use or know—This our fathers bought for us, long and long ago." 
Many Americans forget that it was the English, in particular, who 
fought most of our battles for freedom—that most of our political 
and civil rights, and most of our legal principles, were borrowed 
from the English, who warred for centuries to gain them. That, 
too, is what our Founding Fathers knew. 

Some of that knowledge is described in Appendix A 
accompanying this Statement. That knowledge pertains to constant 
wars, and to continuing political and religious intolerance and 
repression—Authority quelling the Individual's efforts to learn, 
to speak, and to achieve. It pertains also, and consequently, to 
the supremacy of arbitrary and capricious Personal Government, 
over the Rule of Law. 

— Our Constitutional Documents — 

It is generally accepted that America's Constitutional 
documents comprise the Declaration of Independence (in 1776), the 
Articles of Confederation (in 1781), and the Constitution (in 
1787, ratified by 1789) and its Amendments. 

1987 Preface to 17B7 


For those who have read this far, we urge that they keep 
three issues in mind, in reading the remainder of this Statement 
(and the historical summary in Appendix A): States' Rights, 
Individuals' Rights, and the Rule of Law. All three issues were 
critical in the 1770's and 1780'6, and are critical today. 

States' Rights (versus the rights of both Individuals and the 
Federal Government) were of fundamental importance in the drafting 
of the Articles of Confederation, but were given much less 
emphasis in the Constitution. They remained important, however, 
until the Civil War supposedly determined, conclusively, that 
their importance and role would be subordinated. 

Americans can determine for themselves the relative 
historical and current importance of Individuals' Rights. 

The Rule of Law, and not the Rule of Men (or Impersonal 
Government, and not Personal Government) is simply the concept 
that all branches of state and federal government, and all 
persons, should obey the law. The Rule of Law is the true meaning 
of "Law and Order": that governments and persons must act in 
accordance with Law, not arbitrarily or capriciously? they 
nonetheless have the right—at least most of the time, in 
America— to protest the laws, but such protest must be peaceful, 
and hence must preserve Order. Laws may be disobeyed, and Order 


- 10 - 



3709 


replaced by disorder—as Americans did in the Revolution—but the 
lawbreakers had best be willing to go to jail (or worse) unless 
they can win (as we did in the Revolution), and to stay in jail 
unless they can convince the courts that their lawbreaking was 
justified. (In the 1960's, blacks protested peacefully against 
segregation in, for example, lunch counters and busses. These 
blacks then were both physically beaten and jailed. But their 
claims against unjust laws were ultimately upheld, and they were 
released from jail.) 

The final aspect of the Rule of Law is that since 1803 
America has accepted at least in theory, and usually in practice, 
that it is the Supreme Court which, on constitutional issues and 
matters involving interpretation of federal statutes, has the 
final word on the proper interpretation of Buch law—that the 
Supreme Court determines the Supreme Law of the Land. 

Bear in mind those three issues, since this Statement will at 
one place or another discuss the following: 

1. The implementation or rejection of 
the Administration's social agenda will be 
done by state legislatures (by invocation of 
the theories of the Attorney General's 
“original intention", or Judge Bork's 
"interpretivism" or "intentionalism”, and 
Judge Bork's "majoritarianism"). That is 
the acknowledged goal, and effect, of such 
theories. 


2. Individuals' Rights will (by 
invocation of the same theories) be 
subordinated to the Majority's Rights (as 
expressed by state legislatures, but see 
footnote on page 46), except when such 
subordination would violate specific 
Individuals' Rights found (pursuant to the 
narrow "original intention" theory) in the 
Constitution. 

3. The explicit Constitutional rights 
of corporations and other businesses are 
non-existent, and have arisen only from 
judicial "activism", not judicial 
"restraint", in the Interpretation of the 
Constitution. Corporations will also be 
subject to increased regulation by state 
legislatures (through the same concepts of 
"original intention" and "majoritarianism"), 
but (absent judicial "activism") without the 


- 11 - 



3710 


protection of the Constitutional rights 
applicable to Individuals. 

4. The explicit Constitutional rights 
and powers of the President, and Congress, 
and the Supreme Court, are both limited and 
vague, and the present extensive rights and 
powers of these branches of the Federal 
Government, like the more limited rights of 
businesses, have arisen only from judicial 
"activism", not "restraint", and are subject 
to extensive reductions (through "original 
intention" and "majoritarianism"). 

Only the first two of the above consequences (plus certain 
reductions in Congressional and Supreme Court powers, under ”4") 
are sought by the present Administration and by Judge Bork. The 
other consequences would occur if (i) state legislatures and 
courts begin themselves to implement the above theories, or (ii) 
the Supreme Court rigorously applies such theories. 

Reviewing all of the above consequences, one might ask as to 
States' Rights: Did we really adopt the Constitution, or is it 
the Articles of Confederation that are alive and well? 

As to the Rule of Law, bear in mind the following: 

1. The statement of the Attorney 
General that each branch of federal 
government (not only the judiciary) has the 
"duty", which has been construed by the 
Justice Department to mean the "right", to 
interpret laws. (This is discussed later, 
under "A Major Concern" and "A Likely 
Concern"). Consider the consequences when 
this "right" is, as it has been, extended to 
state government and to individuals. 

2. Judge Bork has called the 
invalidated Connecticut anti-contraceptive 
law "nutty", but noted that it had been 
ignored anyway. Judge Bork also has 
continuously denounced existing Supreme 
Court decisions as "unconstitutional" and 
"utterly specious" and "fundamentally 
wrong", and has accused the Court of 
"subversive advocacy" and of acting 
"lawlessly". Until the Senate hearings, he 
has also questioned, vehemently, the 
importance of adhering to precedents. 


- 12 - 



3711 


President Reagan, Attorney General Meese, 
others in the Executive branch, and Judge 
Bork have fostered public dissension by 
themselves denouncing, and by openly 
encouraging proponents of the social agenda 
to denounce, existing Congressional statutes 
and Supreme Court decisions. President 
Reagan also has elected not to execute all 
laws, and has selectively declined to 
enforce provisions of certain laws, such as 
those relating to civil rights and 
environmental protection. What have been 
the consequences of such words and actions, 
on such matters as respect for "Law" and 
maintenance of "Order"? 

We now proceed to a brief discussion of America'6 
Constitutional documents. 

Declaration of Independence 

We began well. In 1??6 we declared our independence "to 
which the Laws of Nature and of Nature's God entitle" us, and 
proclaimed that "We hold these truths to be self-evident . that 
all men are created equal , that they are endowed by their Creator 
with certain unalienable Rights , that among these are Life. 
Liberty and, the._pursui.t- of Happiness . That to secure these 
rights . Governments are instituted among Men, deriving their just 
powers from the consent of the governed ." (Emphasis ours.) 

In those words of Thomas Jefferson, there repose important 
principles, not mere rhetoric. Construing these words strictly, 
without "interpreting" them, they seem to say: 

1. It was not man's laws, but the laws 
of " Nature ". and of "Nature's God ". that 
justified our becoming an independent 
nation. (Carved in stone on the Department 
of Justice Building are words that should be 
heeded more often: "JUSTICE IS FOUNDED IN 
THE RIGHTS BESTOWED BY NATURE UPON MAN. 

LIBERTY IS MAINTAINED IN SECURITY OF 
JUSTICE.") 


2. The truths proclaimed in the 
document were "self-evident", and therefore 
did not require a carefully reasoned or 
explicit philosophical foundation. 


- 13 - 



3712 


3. One "truth" is that "all men are 
created equal”. 

4. All men are endowed by their Creator 
with "Rights" that are "unalienable"--that 
cannot be transferred or surrendered.*/ 

5. Three Cod-given Rights are "Life", 
"Liberty" and "the pursuit of Happiness", but 
these are only "among" such Rights: This 
clearly connotes that men have other rights 
that are "natural" (all factions seem to 
agree that this adjective is acceptable, to 
describe rights derived from the "Creator" 
and from "the Laws of Nature and of Nature's 
God"). But there is no listing of such other 
Rights. 


6. Man's rights existed first, and it 
was to secure (to "shield" or "guard") these 
rights that Governments are instituted among 
("by the common or joint action of") Men. 

7. The Government so established 
derives ("receives" or "traces the origin 
of") its iust ("righteous" or "equitable" or 
"legally right") powers ("ability to act" or 
"authority") from the consent of the 
governed. 

The above statements seem to be fair descriptions of what the 
Declaration says. Not what it should say, or should mean, but 
what it says. 

Articles of Confederation 

These Articles were enacted in 1781 and remained effective 
until superseded in 1789, when the 1787 Constitution became 


*/ The 1959 unabridged Second Edition of Webster's New 
International Dictionary defines "unalienable" as "inalienable"; 
and "inalienable" as "Incapable of being alienated, surrendered, 
or transferred." The dictionary compares "inalienable" with 
"indefeasible": the latter term refers to an “absolute" 

interest, such as title to a house, which interest may, however, 
be transferred; but "under the Constitution of the United States, 
personal liberty, freedom of speech, etc., are inalienable 
rights." (Emphasis ours.) 


- 14 - 



3713 


effective. Some of their provisions will be discussed below, 
under " The Constitution ", for the significance they lend to the 
provisions of the Constitution. 

Many Americans know that the Articles failed because they 
gave inadequate power to the federal government: that if 
Congress needed funds, it had to request them from the states, 
which in turn would tax their citizens; and that if the President 
wanted to execute the laws, he could look only to the states to 
implement such execution (including, where necessary, to provide 
troops—the Revolutionary War had not yet ended). 

This problem was real, even in minor matters: John Adams, 
negotiating a commercial treaty while in London (see App. A, 
p.l), admitted he lacked authority to bind America, and received 
an English request that representatives attend from all 13 
American states. And on major matters arising from the 
Government's powerlessness: Nathaniel Gorham, the president (of 
a "Committee of the States", not of "the United States"), 
supposedly conducted secret negotiations with Prussia's Prince 
Henry, as to Henry's possible role as America's monarch. 

The Congress (of Confederation) did, however, obtain 
agreement from the states on one significant matter: the 
Ordinance of 1787, another of Jefferson's creations. Certain of 
the thirteen original states had made competing claims to the 
Great Lakes area west of Pennsylvania. In a remarkable 
concession, which perhaps avoided armed conflict between those 
states, the states (primarily Virginia) ceded such Northwest 
Territory to the United States, and made provision for the 
admission of new states, in which (as urged by Jefferson) slavery 
would be prohibited. This Ordinance thus gave rise to the States 
of Ohio, Michigan, Indiana, Illinois, Wisconsin, and (part of) 
Minnesota. 

The Constitution 

As many know, the Constitution was drafted in 1787, and 
became effective in 1789. We will focus primarily on aspects 
that may not be widely known. 

Most readers of the Constitution know that it focused upon 
basic governmental structure, and stresses two concepts borrowed 
partly from England's John Locke and, especially, from 
Montesquieu's 1748 The Spirit of the Laws : the separation of 
powers among the three branches, and the system of checks and 
balances. Both concepts were designed to avoid or at least 
minify excesses by any one branch. 

Separation-of-powers is a concept understood by most. 


- 15 - 



3714 


Checks-and-balances is understood less: it means that one branch 
of government either shares a power with another branch (or 
within the same branch--that is the reason for a House of 
Representatives and a Senate), or has some of the other branch's 
power. An example of a shared power is in the nomination (by the 
executive) and confirmation or rejection (by the legislative 
Senate) of Supreme Court and other federal court judges. An 
example of an overlapping power is that the legislative branch 
has the primary power to make lavs, but the executive may veto 
them—which veto may in turn be overridden by the legislature. 
(Let us not get embroiled in an argument over whether the 
Senate's confirmation-power is a shared or overlapping one. In 
one or the other capacity, the power exists. See " Nonsense and 
Sense ". above.) 

A novel and surprising aspect of the Constitution is the 
extent to which it leap-frogs the states, by establishing a 
number of direct connections between the federal government and 
the people. The Articles of Confederation established a 
government that derived its powers from the states . and the 
Articles' preamble refers to "a confederation and perpetual union 
between the states"; the Constitution establishes a government 
with powers derived directly from the people . and the 
Constitution's preamble provides that "We the People of the 
United States...do ordain and establish this Constitution for the 
United States of America." (A Lee from the Virginia family 
contended bitterly that it should read "We the states' 1 .) The 
Articles reserved powers only to the states, but the Tenth 
Amendment to the Constitution (part of the "Bill of Rights" 
ratified in 1791) states that "The powers not delegated to the 
United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to the 
people ." (Emphasis ours.) 

The Articles provided that members of Congress would be 
appointed annually by state legislatures, and could at any time 
be recalled and replaced; the Constitution provides for the 
election of Representatives every two years by the people . and of 
Senators every Bix years by the legislatures (but now by the 
people, pursuant to the Seventeenth Amendment). The Articles 
provided that each state (legislature) had one vote in electing 
members of congress; the Constitution provides that each state 
shall have two votes in the Senate, but that states' votes in the 
House shall be proportional to their populations. 

The Constitution thus implements the Declaration of 
Independence's principle that it is the people . not the states, 
who are the ultimate sovereigns, from whom the Government derives 
its limited sovereignty—and that it is the people who retained 
for themselves both specified and unspecified rights. How then 


- 16 - 



3715 


can states (which clearly ore not the source of the Government's 
sovereignty or the peoples' natural and federal rights) interfere 
with or rescind that sovereignty of the Government or those 
rights of the people? 

Probably the most original aspect of the Constitution is, in 
addition to the separation of powers, the establishment of an 
independent judiciary. This appears to be unique, in the history 
of written and unwritten constitutions. Montesquieu (expanding 
upon John Locke) is drawn upon by Madison in The Federalist .«/ 

No. 47: "When the legislative and executive powers are united in 
the same person, or in the same body of magistrates, there can be 
no liberty...." "Again, there is no liberty, if the judiciary 
power be not separated from the legislative and executive. Were 
it joined with the legislative, the life and liberty of the 
subject would be exposed to arbitrary control; for the judge 
would be then the legislator. Were it joined to the executive 
power, the judge might behave with violence and oppression ." 
(Emphasis ours.) 

The contrast between the Constitution and the English 
constitutional system, our closest parent-system, is what makes 
our separate judiciary, and our separation of powers generally, 
so remarkable. Both our system and theirs exalt the Rule of Law, 
but the English largely ignore separation of powers. The English 
blend the executive, legislative, judicial, and religious. (See 
App. A, p.12) 

Most astonishing to Americans is England's lack of 
separation of Church and State: (i) the Archbishops of 
Canterbury and York and more than 20 senior bishops are 
"Spiritual Peers" who are members of Parliament, (ii) since 1534, 
the King or Queen is the only supreme head of the Church of 
England, and appoints its bishops , and (iii) since 1539, it is 
the Government , through Parliament, that has had the power to 
alter the doctrines, and articles of belief, of the Church of 
England■ 

Suffice it to say that the framers of our Constitution were 
acting deliberately indeed, when they adopted the principles of 
separation of power, and separation of Church and State. And 
even in 1767, America probably could not have agreed upon one 
"Church", from among our Christian faiths. 


*J The Federalist Papers were written by Hamilton (about two- 
thirds) , Madison and, the eldest and most prestigious, John 
Jay. They were serialized in newspapers from 1767 to 1769, and 
helped cause the Constitution to be ratified. 


- 17 - 



3716 


Our Founding Fathers were fortified by their religious 
faith, as evidenced in the Declaration of Independence, their 
writings and speeches and, in many or most cases, their belief 
that the natural law—which gave rise to natural rights that pre¬ 
dated government—consisted, in the words of the Declaration of 
Independence, of the "Laws of Mature and of Nature's God". (These 
may be two sets of Laws, or only one, but it is manifest that at 
least some of these Laws arise from Nature's "God".) 

But the Constitution itself adopts neither a monarch nor a 
religion. Except for the requirement of nine states for 
ratification, the final substantive words (in Article VI) of the 
Constitution are that "no religious Test shall ever be required 
as a Qualification to any Office or public Trust under the United 
States." And the required Presidential Oath "or Affirmation" in 
Article II specifies that the President shall solemnly swear "(or 
affirm)" to perform the specified duties. Further, we offer a 
statement in an official federal document, The Tripoli Treaty of 
1796: "The government of the United States is not in any sense 

founded on the Christian religion." Freedom of religion is among 
the rights secured by the Bill of Rights, the first Ten 
Amendments which were ratified in 1781. Their major draftsman 
was the Constitution's major draftsman, James Madison. 

In the 1787 Constitutional Convention, George Hason of 
Virginia was among those who demanded that our rights and 
freedoms be recognized in the Constitution itself. (He had been 
a principal force behind Virginia's Declaration of Rights, upon 
which—together with, more indirectly, the English Bill of 
Rights—the federal Bill of Rights was largely based). But a 
majority of delegates opposed such inclusion, since to enumerate 
specified rights might imply that no other rights existed. In 
effect, Mason's argument was adopted, and various states refused 
to ratify the Constitution unless the Bill of Rights was added; 
this is reflected in the preamble to the Bill of Rights, which 
notes that State legislatures, while considering ratification of 
the Constitution, "expressed a desire, in order to prevent 

pisconstf-asLip n -o r of its [the cpngUWion'?) powers, theh 

further declaratory and restrictive clauses should be 

added ...■"/Emphasis ours.) 

These Rights are largely procedural rights, of individuals, 
and take the form of restrictions upon our Government: for 
example, that "Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise 
thereof", and that "No person" shall "be deprived of life, 
liberty, or property, without due process of law". 

The Bill of Rights did not grant us our underlying, 
substantive rights. Consistent with the assertion in our 


- 18 - 




3717 


Declaration of Independence that such rights are God-given, the 
Bill of Rights merely states that, for example, "Congress shall 
make no law.abridging the freedom of speech...or the right of 
the people peaceably to assemble". (Emphasis ours.) 

The Bill of Rights comes not only from Virginia's 
Declaration of Rights (see App. D) and various state 
constitutions. England's 1669 Bill of Rights is longer than 
ours, but includes most rights found in ours (or in our original 
Constitution itself), even as to language. (See Xpp. C.) 

A more immediate antecedent to our Bill of Rights was found 
this July by a Library of congress archivist. It is the only 
working draft known to exist, reports People magazine (normally 
an unlikely source for legal research, but we are pleased that it 
too is reporting on the Constitution), which quotes the draft as 
saying "The people have certain natural rights...of religion; of 
acquiring property, and of pursuing happiness & Safety; of 
Speaking, writing and publishing their Sentiments with decency 
and freedom; of peaceably assembling to consult their common 
good..." Such draft is more explicit than the final version, in 
asserting that the people have natural rights, but the magazine 
states that the final version is "substantially similar" to this 
draft, but "puts more emphasis on the -judicial process and drops 
some provisions, such as the banning of monopolies." (Emphasis 
ours.) 

Of the Amendments following the Bill of Rights, the one that 
still receives the closest scrutiny seems to be the 14th, 
ratified in 1668 and providing in part that: "All persons born 
or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process of law; 
nor deny to any person within its jurisdiction the equal 
protection of the laws." Its "due process of law" portion is 
normally interpreted as extending to state action the 
restrictions imposed, by the Bill of Rights, against federal 
action. Its "equal protection" language is obviously broad, and 
general, but was interpreted, for example, in 1954 to require 
school desegregation--a clearly "activist" Court decision. 

Most lawyers endorse "judicial restraint", and almost all 
Supreme Court Justices have observed it, in its normal meaning. 
When it serves as a synonym, however, for the concepts of "strict 
construction" (urged in the early 1970's), and "original 
intention” (urged since about 1965 by Attorney General Heese, and 
explicitly endorsed by President Reagan and Judge Bork), it 


- 19 - 



3718 


appears to take on either or both of two meanings: statutes and 
the Constitution should be strictly construed in accordance with 
(i) their text (their actual words ). and/or (ii) the intention of 
their drafters. 

Much of this Statement, and of Appendix A, seeks to shed 
light on both narrow and general intentions of our Founding 
Fathers. 

Some questions for those who feel that only the text of the 
Constitution should control: 

1. Is there any mention of capitalism, 
or any particular economic system, in the 
Constitution (including its Amendments]? 

What protections are granted in the 
Constitution to "corporations" or other 
"businesses"; is either term, or any similar 
term, even mentioned? Are not the 
Constitution's rights, privileges, and 
immunities granted only to "people" and 
"persons" and "citizens"? 

And is not even the provision that 
prohibits the taking of "private property", 
without just compensation, a final clause in 
a Bill of Rights paragraph that prohibits 
certain acts against a "person"? 

Have not the rights of corporations 
arisen from broad construction of the 
Constitution, and arisen in the absence of 
any specific or even general intentions by 
our Founding Fathers—who lived in a pre¬ 
industrial world consisting of a majority of 
farmers and a minority of individual 
craftsmen? 


2. Two groups are, in fact, singled 
out for protection (although these groups 
comprise only individuals): The Constitution 
authorizes Congress "to promote the Progress 
of SniiHEfi and VsSful Arts, by securing for 
limited Times to Authors and Inventors the 
exclusive Right to their respective Writings 
and Discoveries ". (Emphasis ours.) This 
clause gave rise, of course, to copyright and 
patent laws (and may be an interesting 
comment on the activities and occupations 
deemed important to our Founding Fathers). 


- 20 - 



3719 


But for strict constructionists: 
did Congress go too far, by extending 
copyright protection to music composers? Is 
music a "useful" art, and a composer an 
"Author”, and a song a "Writing"? Should we 
protect a song's lyrics, but not the music 
itself? 


3. The Constitution prohibits laws 
"abridging the freedom of speech, or of the 
press". Whether or not the "press" includes 
radio and television, and whether or not we 
should impose, through interpretation . 
severely limited restrictions on these two 
freedoms, does the Constitution itself impose 
restrictions on these freedoms? And does it 
distinguish between these freedoms, so that 
one is more unfettered than the other? 

4. What is the "judicial Power" vested 
in the Supreme Court, and in lower federal 
courts, by Article III of the original 
Constitution? (Not merely which cases, 
between which parties, but what is the actual 
nature and extent of such "judicial power"?) 

5. Does the Constitution grant to the 
Supreme Court the sole right to invalidate, 
or declare unconstitutional, acts by 
legislatures or executives? (Or was this 
right merely claimed successfully in the 1B03 
case of Marburv v. Madison , by the 
conservative Chief Justice Marshall—who 
joined other conservatives like Hamilton in 
urging broad and flexible construction in 
order to have a strong national government?) 

6. Are the Supreme Court's powers 
either the weakest—or the strongest—of 
those of the federal branches, because of the 
relative absence in the Constitution of both 
express grants of, or restrictions on, the 
Court's powers? (And is it not correct that, 
except for occasional "activism" by 
conservatives or liberals, the Court has 
traditionally demonstrated restraint in 
invoking its textually-unspecified powers?) 

7. Do we learn in constitutional law 


- 21 - 



3720 


courses in law school that the greatest 
increase in a federal branch's powers has 
been in that of the President ? Is this 
teaching correct ? Has this growth occurred 
because of both acquiescense by Congress and 
broad construction, by the Court, of a 
President's ■’ Implied ’ 1 powers? 

8. Has the growth in Congressional 
power in such areas as regulation of 
states—and of individuals and 
corporations—arisen from broad construction 
of such powers as the one to "regulate 
Commerce... among the several States"? 

9. Has the above interstate-commerce 
power been broadly construed to apply to 
entirely Intrastate activities? 

10. Have the above expansions of 
Presidential and Congressional powers, 
through broad Judicial construction, occurred 
under conservative courts as well as liberal 
ones (and not merely in the early 19th 
Century)? 


11. Is it correct that the Supreme 
Court initially, and from the Civil War until 
shortly after President Roosevelt's "court- 
packing" attempt, was a conservative court, 
and until 1937 a court that invalidated both 
federal and state economic legislation 
(including, for example, not only various 
1930's federal statutes but also state 
statutes like the Hew York statute regulating 
bakeries, that was invalidated in 1905 in 
Lochner v. New York , a statute that limited 
the workday to 10 hours and the workweek to 
60 hours, and that required proper 
ventilation and plumbing)? 

12. Is it correct that such pre-1937 
Court invalidated federal regulation by 
narrowly construing the Congressional 
commerce and taxing powers, and invalidated 
state regulation by broadly construing the 
14th Amendment's due-process clause? 

13. The 9th Amendment to the 
Constitution states: "The enumeration in the 


- 22 - 



3721 


Constitution, of certain rights, shall not be 
construed to deny or disparage others 
retained by the people." What are these 
rights retained by the people? 

14. The 10th Amendment to the 
Constitution states: "The powers not 
delegated to the United States by the 
Constitution, nor prohibited by it to the 
States, are reserved to the States 
respectively, or to the people." What powers 
are thus reserved to the Btates, and what 
powers are reserved to the people? 

15. Has the word "liberty", in the 5th 
and 14th Amendments, been broadly construed 
by conservative Supreme Courts to include 
"freedom of contract", especially for 
employers, and by liberal Supreme Courts to 
include the "rights of labor" to organize, to 
strike, and to engage in peaceful picketing? 

We could continue, and include questions for those who 
espouse " intention " as well as, or instead of, " text ". Many of 
the questions would be the same, or would reveal equally 
superficial reasoning by those endorsing "original intention". 

(We jest, but what were the framers' specific intentions on 
whether music is a "useful” art?) It can get complex, because 
this concept's proponents sometimes select "text", and at other 
times "intention”--apparently to achieve their desired results. 

For example, the 14th Amendment refers only to equal 
protection for any "person". The text would thus appear to 
encompass women as well as men, but Judge Bork has said that women 
are not included because the specific or original intention was to 
protect only blacks. 

What about corporations as "persons"? The Industrial 
Revolution in the United States did not pick up steam, 
figuratively or literally, until after the Civil War; yet early in 
such period, in 1886, the court decided that corporations (and 
Chinese residents in America) were "persons" under the equal- 
protection clause. Are corporations and Chinese residents more 
worthy of broad-construction benefits than are women? 

Judge Bork approves, however, of the 1954 cases requiring 
integrated schools, not separate-but-equal schools (one of the 
very few instances in which he has not opposed attempts to let 
blacks share the rights and benefits enjoyed by the rest of us). 

He reasoned that separate-but-equal education violates the equal- 


- 23 - 



3722 


protection clause—but the drafters of the 14th Amendment, who 
probably had no "specific" or "original" intention to protect 
women . also had no such intention to prohibit " separate " but equal 
schools. Their clear intention was to initiate only the "equal" 
concept; they regarded (and the Court regarded, until almost a 
century later) Beparate -but-eoual education (and railroad coaches) 
as entirely acceptable. 

"Original intention” as a rigid principle has long been 
discredited, partly because it simply does not work; hence neither 
conservative nor liberal courts have usually adhered to it. Our 
group was recently told by the Dean of a prominent law school 
that, in effect, each law-school freshman learns this for himself, 
by considering and testing the principle, then rejecting it. We 
were not surprised. 


— A Tool for Listening and Acting — 

We have a confession to make, and with it a suggestion. It 
is not lawyerly to say we "feel” (or even "believe") that a 
particular decision or theory is correct; nor to say that it is 
"fair”. "Feeling" connotes emotion. We prefer thorough research, 
and rigorous intellectual analysis. "Fairness" is too subjective 
(although it is the accepted foundation of "due process"), too 
weak a foundation for a theory or principle, and too general a 
word to impress our clients and justify our fees. 

The older among us confess: Part of what we like to call 
"good judgment" or "wisdom" is really "feeling". With 
considerable reluctance and embarassment, we quote and endorse 
what one of our group has said—and what never will be heard in a 
law school unless somebody refines it and makes it sound 
intellectually "respectable": 

"Many of us had a real problem analyzing what bothered us 
about Judge Bork's views. We're all fond of William Buckley, and 
he often makes valid points, but reading Judge Bork's views was 
usually like listening to some of Buckley's television comments: 
glib, somewhat arrogant and condescending, and somehow "wrong", 
but—at least superficially—persuasive, rational, and logical. 
Our confusion was embarassing: we're used to dealing with 
complexities, and with words; that's our job and we're supposedly 
good st it. 

"We finally discovered our problems with Judge Bork, but we 
wasted a lot of time by concentrating initially on only 
Intellectual analysis, instead of first trusting our visceral 
feeling that something was wrong, and then doing the intellectual 
analysis. 


- 24 - 



3723 


"Remember that feisty but courteous Congressman Fascell from 
Florida, in the Iran-Contra hearings? After listening to the 
Colonel's and Admiral's explanations, he looked puzzled and said 
something like: "Then how come I don't feel good about it?" He 
said it all, right there, and deserves immortality. 

"Feeling is part of the answer, but don't trust "feeling" 
with the heart instead of the stomach. Whenever somebody says he 
■knows in his heart”, or "believes from the bottom of his heart", 
that something is true or right, we know we're going to hear the 
prejudices enshrined in his head . Same problem with a "gut- 
reaction": it may be the right kind, but it may just mean an 

initial "top-of-the-head" reaction. 

"The word "Justice" is too abstract to be meaningful. People 
want their courts to be Fair . Everything else is mostly frosting 
on the cake. For the whole cake, people might want courts to 
render Justice: to be Reasonable, Fair, Impartial, and 
Consistent. 

"But they'll probably settle for Fair: that to be Fair is to 
be Just. The trick is to give those words meaning, and not merely 
to play clever mind-games with them. 

"The word Reasonable is meaningful for lawyers—a word of the 
mind. But the best meaning for the three other words lies in the 
Traffic Court. 

"If you're in Traffic Court because you drove 50 where the 
speed limit was 35, you may be annoyed as the devil, and may be 
angry and worried (as many of us have been) about losing your 
license or having your insurance-premium raised. Let's say you 
are found guilty and are fined $50. If despite your anger you 
accept the judge's decision, then what you reluctantly feel—in 
your gut—is that it's Fair. And that's the only safe and honest 
meaning for Fairness . 

"If the Judge who fines you is a black war-veteran, who knows 
that you were an affluent college kid who went to Canada instead 
of Vietnam, and who still charges you only the same $50 that he 
charged the black lawyer who preceded you (who also drove 50, but 
who fought in Vietnam), then what you gratefully feel, in your 
gut, is that it's Impartial. The only meaningful Impartial . 

"If your friend who got fined two months ago, for the same 
offense as yours, also got fined $50, then what you feel, in your 
gut, is that it's Consistent. Truly Consistent . 

"(On occasion it's okay to be inconsistent, but such 
inconsistency must itself pass the test. If the legislature says 


- 25 - 



3724 


that speeding fines shall now be $100 instead of $50, you're stuck 
with it, but so is everybody else. And if, in applying the test, 
you (either eagerly or reluctantly) agree that changing 
conditions, or past injustices, or new technologies, seem to 
require or at least justify a change, that's okay, because you 
feel that the change passes the test. If you so agree, then you 
accept the change; if you disagree, protest it, but peacefully.) 

"So that's the Traffic-Court test for "Justice": test 
"Reasonable" with your mind, but test "Fair", "Impartial", and 
"Consistent" mostly with your mid-section. The test works for 
everything: for what's said or done by a court, or by congress, 

or by the President, or by other people, or by yourself. It's 
what is behind such expressions as "I can't stomach it", and "It 
makes me queasy", and "Is your conscience clear?", and "Can you 
sleep nights?", and "It doesn't feel right". 

"Some people lack this neural connection between their brains 
and their mid-sections. William Neikirk recently said it better, 
in his weekly Sunday Chicago Tribune column: "You cannot do it 
[return America to a "sense of community that once bound us 
together and gave each other strength") by letting the best minds 
in the country graduate from college and run amuck on Wall Street, 
violating the most basic human values in search of personal wealth 
via hostile takeovers and insider trading." (Emphasis ours.)i/ 
(And a current news column discusses the conviction of a 34-year- 
old lawyer for insider trading.) We see these people in business, 
law, and elsewhere—the amoral hustlers, intellectually or 
otherwise, to whom the worst sin is to be "naive” or 
"idealistic". They're intense, often humorless, the moral and 
economic relativists who loftily view themselves as "realistic" 
and "pragmatic"; they see only "gray"—not a messy and complex 
mixture of "black" and "white". 

"They work hard, and deserve their material success, but seem 
devoid of any concern for Neikirk's "most basic human values": 
they seem to lack the ability to feel, or to feel concern for, 
what is merely "Fair"—they seem to suffer from a missing 
chromosome. And some seem to have this basic sense of Fairness in 


This concern is reflected in a 1986 report issued by the 
Commission on Professionalism of the American Bar Association. 

The report recommends in part that "All segments of the Bar 
should: 1. preserve and develop within the profession 

integrity, competence, fairness, independence, courage and a 
devotion to the public interest...[and] 4. Resist the temptation 
to make the acquisition of wealth a primary goal of law 
practice." 


- 26 - 



3725 


their family life, but lack it or repress it in their public or 
professional life--where they may make a "correct" decision, but 
not the "right" one. 

"So the best advice we can give people is to suggest that 
they apply the Traffic-Court test—the true meaning of 
"Justice"—both to learn if others are speaking with forked 
tongues, and to learn if they themselves are listening with 
plugged ears. And also to test their own remarks and actions." 

Perhaps we should give an example or two, of the apparent 
missing chromosome and the usefulness of the Traffic-Court test. 

In commenting on a proposed Congressional statute. Judge Bork 
condemned it as "legislation by which the morals of the majority 
are self-righteously imposed upon a minority." (This evidently 
preceded his "majoritarian" period.) Reasonable? Of course. 

Does it feel Fair? Yes. And it was a concern, expressed at 
length, by conservative as well as liberal Founding Fathers. But 
in this instance the majority included Congress, and the 
legislation was the 1964 Civil Rights Act's public-accommodations 
section, requiring hotels and restaurants to serve blacks. So the 
oppressed "minority" were not the blacks, but'the owners of hotels 
and restaurants. Reasonable? Only in theory, not in practice. 
Does it feel Fair? Not to us. 

One other example. A Justice Department lawyer argued before 
the Supreme Court that a state statute should be upheld on the 
grounds of "tolerance". Reasonable? Of course. Does it feel 
Fair? Yes, and this too was, and remains, an underlying concern 
in our constitutional system. But the Alabama statute was 
sponsored by a State Senator whose intent was explicitly 
religious, and this 1961 statute provided for a period of silence 
"for meditation or voluntary prayer" in public schools. The 
Justice Department lawyer decided that the spoken-prayer issued/ 
was "a kamikaze mission", Bince it (conflicted directly with 
earlier Court decisions and) was "an issue for which the 
intellectual preparation had not been done." WaB "intellectual 
preparation" the only missing element? Or do we think, and feel, 
that it simply is wrong, under our Constitution and our standards 


•/ This had been ruled upon when the Court invalidated a 1982 
Alabama statute that authorized teachers and professors "in any 
public educational institution" to either "lead willing students 
in prayer" or lead them in a prescribed prayer, of about «o 
words, to "Almighty God...(who they "acknowledge" is) the Creator 
and Supreme Judge of the world." [The Justice Department 
lawyer's comments quoted in this paragraph are from The New 
Yorker article referred to on page 35.) 


-27 



3726 


of fairness and tolerance, to require prayers in public schools or 
to prohibit prayer outside of schools? 

The silent-prayer issue, as “a moment of silent prayer", was 
argued as "an instrument of toleration and pluralism, not of 
coercion or indoctrination." Does this feel Fair? Whether or not 
they approve of public-school prayer, would most Americans regard 
public-school prayer, whether spoken or silent, as something that 
would be "permitted” and "tolerated", or as something that, even 
as "meditation", would be "required"? A majority of the primarily 
conservative Supreme Court rejected the argument, with a majority 
opinion that said in part that "the political interest in 
forestalling intolerance extends beyond intolerance among 
Christian sects—or even intolerance among "religions"--to 
encompass intolerance of the disbeliever and the uncertain" and 
“that the individual freedom of conscience protected by the First 
Amendment embraces the right to select any religious faith or none 
at all." Is that Reasonable? Does it feel Fair? We think the 
answer to both questions is yes, but certain factions in America 
vehemently disagree with both us and the Court. 

A footnote on the above opinion: one Justice, who concurred 
with the majority primarily because of the "official legislative 
history" of the Alabama statute, nonetheless stated that "moment 
of silence laws in many States should pass Establishment [of 
religion] Clause scrutiny because they do not favor the child who 
chooses to pray during a moment of silence over the child who 
chooses to meditate or reflect." Reasonable? Of course. But if 
such statutes are upheld, will the sponsoring legislators (who 
will refrain from mentioning prayer or religion in "official" 
legislative history) and the local and national media—and the 
parents of many of the school children—talk about "meditation" 
and "reflection", or will they trumpet a victory for school 
"prayer"? 

And what will be in the minds of the children, and what will 
they say to each other, about this "moment of silence"? We adults 
like to think we are not fools, to be fooled by such 
"reasonableness", but—even apart from what many parents would 
explain to their children—perhaps we should not underestimate our 
children's intelligence, and their occasional cruelty: the 
Alabama parent complained that his children not only had "been 
subjected to various acts of religious indoctrination" in school, 
but also "were exposed to ostracism from their peer group class 
members if they did not participate". 

— A Major Concern — 

Most of us admire certain traits and achievements of 
President Reagan. We are confident, and comfortable, about his 


- 28 - 



3727 


basic decency. He has done a good job on holding down inflation, 
though that is offset by our increased national debt and trade 
deficit. He is a patriot, has kept us militarily strong, and is 
negotiating from strength in his disarmament discussions—in which 
we wish him, and thus all Americans, success. He represents all 
Americans, and his success is America's success. 

Priorities 

Is something amiss, however, when we read in a Chicago 
Tribune article entitled "Reagan wish liBt begins with Bork", that 
the President says " there is no more important task " than securing 
the confirmation of Judge Berk to the Supreme Court? (Emphasis 
ours.) He are disturbed by the advice to which the President has 
been listening. 

Should the top priority in the President's agenda for the 
remainder of his term be to try to implement, through a Supreme 
Court appointment, a "social agenda" that has been rejected by 
Congress? Should the President and Congress be spending time on 
reversing Court precedents on issues like abortion, school prayer, 
and one-man-one-vote? The answer is clearly yes, in the minds of 
the more radical members of at least two religious groups. But 
the answer seems to be no, in the minds of the majority of members 
of Congress--and the majority of traditional moderates, liberals, 
and conservatives. 

Are there not more pressing domestic and foreign issues our 
government should be addressing, such as how to start whittling 
away at our national debt and our trade deficit? 

The Neikirk Chicago Tribune column mentioned earlier was 
written by a man we have not heard called "liberal", and appeared 
as usual in the "Business" section of his newspaper. If it had 
instead been on the front page, and if Americans and our 
government were to heed it, this Statement would be unnecessary. 

In a departure from its usual business-reporting, Heikirk's 
column deplores the loss of a sense of community that once bound 
us together, and says that "Americans respond to greed, not 
need." Perhaps Mr. Meikirk and the Chicago Tribune will forgive 
us for quoting an entire paragraph, which tersely says much: 

"Somehow, it has been forgotten that an 
economy is nothing more than a sense of 
community. It exists for people, not the 
monied interests. Capitalism does not have 
to be a dog-eat-dog, deterministic system 
where people do not matter and where chasing 
after money is the only endeavor." 


- 29 - 



3728 


(Abraham Lincoln, the father of the currant Republican Party, had 
a similar thought in 1859: "Republicans are for both the man and 
the dollar, but in case of conflict the man before the dollar." 

He suspect that missing-chromosome persons will find Neikirk's 
and Lincoln's remarks—and the ABA Commission's comments, quoted 
earlier, against making acquisition of wealth a primary 
goal—merely "quaint”, "unrealistic", and "amusing".) 

Neikirk condemns also the government's "ignoring the 
problems of the homeless and the poor" by failing to consider 
programs that would help them, end its "running a big federal 
deficit", and its "pursuing [incorrect] economic policies", and 
its "denying minorities their right to economic opportunity", and 
its "trying to blame someone else for the fiscal 
irresponsibility", etc. Neikirk directed most of his comments to 
the President, but many apply as well to congress, businessmen, 
lawyers, publishers and editors, and most other Americans. 

So there is a question of priorities. A serious question. 
Dissension 

We will blatantly lift out of context two other Neikirk 
comments, but for a purpose that seems consistent with the spirit 
of his column. He said that we cannot return to a sense of 
community "by playing to the worst instincts", and that the 
President "does not see how his policies have created a hard- 
edged world". 

Does the President not realize that his support for his 
"social agenda"—urged upon him by the radical segments of two or 
three religious groups—appeals to Americans' worst instincts, 
not their best instincts? That this agenda emboldens radicals to 
coerce and repress individuals, through the enforcement of the 
moral views of state legislative majorities? That those 
majorities (and the majorities in cities and in Congress) can 
change, have changed, and will change—and thus that today's 
oppressors may become tomorrow's oppressed? 

Does the President not realize the wisdom displayed by our 
Founding Fathers when they imposed numerous restrictions on the 
possible barbarities imposed by majorities or minorities? The 
barbarities occur when their proponents are plagued by the 
missing chromosome—and therefore flunk the Traffic-Court test. 
This is not a matter of "liberals" or "conservatives": 
barbarities may come from either group. 

An sssential role of our decidedly "undemocratic" Supreme 
Court Justices, who are appointed for life, is to remain above 


- 30 - 



3729 


the fray--and not be part of it, except when they must apply the 
Traffic-Court test themselves because America's majorities, 
minorities, or governments have failec such test. Such 
involvement by the Court may sometimes be "activist", but it 
always should be deemed "conservative'*--as conserving and 
protecting the fundamental structure and rights set forth in, or 
underlying, our Constitution. Some Americans need those rights 
protected today. Any one of us may n<ed those rights tomorrow. 

Does the President not realize that majority rule should be 
the norm, but that tyranny and oppression may arise from 
majorities, minorities, or government, and should be resisted, 
always? That it would be as wrong to require abortions as to 
prohibit them, and as wrong to prohibit private prayer as to 
require public prayer—that the common evils are coercion and 
repression, and the supremacy of Authority over Liberty? 

The President's support for a social agenda of radicals 
emboldens them to repress those of us with traditional, tolerant 
(and therefore Constitutional) religious views. Could 
Presidential discouragement of "pro-i fe" venom and violence make 
less likely the bombings of birth-con rol clinics? Could an 
earlier President, if he had spoken u t ,, have made less likely the 
death threats, and a bullet through a window, for the 
conservative Justice who wrote the ma ority opinion in the 1973 
decision legalizing abortion? Has no: the concept of 
"disagreement" run amok? 

Still earlier, another President did speak up. Many 
Americans may have heard a recent public-radio report (apparently 
one of a series on the Constitution), describing reactions to the 
Supreme Court's 1962 decision that invalidated State-sponsored 
oral prayer in New York public schools. There was an uproar by 
critics of the decision. Radicals ignited, on the driveway of 
the parent who challenged the law, rags piled in the shape of a 
cross, and telephoned his home "24 hours a day" for a week. But 
the President stepped in fast, to try to calm things down. Only 
two days after the Court's decision was announced, the President 
called a press conference, and told America that if we are to 
uphold the principles of the Constitution, it is important that 
we obey the Supreme Court's decisions, even when we don't agree 
with them. That President was John F. Kennedy. (But does that 
matter: should a conservative president who stresses "law" and 

"order" be less concerned about upholding Court decisions, and 
avoiding domestic turmoil, than a liberal or moderate one?) 

These radicals also seek to repress America's involuntary 
immigrants, its blacks who seek to have their votes rank equally 
with others (the one-man one-vote, legislative redistricting 
issue), Blacks, like other Americans, also seek jobs. (He do 


- 31 - 



3730 


not defend all affirmative action programs, since it is unclear 
that all have been wise or even very effective, but we defend the 
concept of trying to rectify past injustices in a sensible and 
effective manner, and to help anybody—especially someone with a 
vote equal to ours—become as educated and well-off as 
possible. Here, America may fumble and bumble, as on many other 
natters, but let us not give up, either on blacks or on anybody 
else.) 

America faces an ominous possibility. We are earnestly 
concerned that success of the social agenda would rekindle 
animosities and tumult, in state after state, as the abortion, 
prayer, and other issues would be fought anew. (We have not 
researched this point, but perhaps a majority in Congress shared 
these concerns, when they rejected the social agenda.) 

But what, also, will be the reaction of the Silent 
Majority—still probably a meaningful term—when they see in a 
Newsweek photograph that their freedoms are threatened by an 
anti-abortion group led by men linking hands and wearing "Knights 
of Columbus" apparel. And when they read, in Life ’s description 
of a Supreme Court case, a lawyer's comment that one Justice "is 
a devout Catholic down the line. On abortion we'd have no 
chance...." 

This, as well as similar publicity on the efforts of radical 
members of fundamentalist Baptist and other religions, is 
dangerous. It also is an affront to Catholics and Baptists 
who—in varying degrees, but noticeably— have demonstrated 
religious tolerance in their public actions: not merely 
President Kennedy, but also Senators Biden, Byrd, D'Amato, 
DeConcini, Gore, Grassley, Harkin, Hatfield, Kennedy, Kerry, 
Leahy, Mikulski, Mitchell, Moynihan, Murkowski, and others—and a 
World War II Colonel awarded the Legion of Merit, who is now 
called "Justice" William Brennan. 

Should Americans take off their (public) gloves, and 
rekindle their private prejudices and come out fighting? 
Fundamentalists and Catholics versus the rest of us? That is an 
ugly thought, and the actions would be uglier—and grossly unfair 
to the non-radical members of those religions, who (like most 
lawyers) are not speaking up against coercion and violence, or 
for the Rule of Law. We Americans have been down that ugly road; 
worse, our baser instincts like that road. 

Mr. President, please listen to Hr. Neikirk: help us 
stumble along, to regain our sense of community. Help not to 
divide us, but to unite us. You recently led the nation's 
children in a pledge, and we urge you to encourage and help us to 
be one Nation, indivisible, seeking Liberty and Justice for all. 


- 32 - 



3731 


And yes, one Nation under God, for most of us. But as our 
forebears decreed in the Constitution, still a Nation that 
accepts disbelievers as well as dissenters. 

Personal Government—the Executive office 

Some in our group night advise the President: If you can 
get unanimous approval, on any one issue, from Secretary of State 
Shultz, and Secretary of Defense Weinberger, and (from our 
respect for his integrity in the Watergate hearings) your Chief 
of Staff Howard Baker, go ahead with your proposed action. We 
would say the same for the unanimous approval of Senators Rudman 
and Inouye, and Congressman Hamilton, after the Iran-Contra 
hearings. (Or Senators Cohen, Mitchell, and Nunn, or others like 
Senator Heflin, whom one of us calls "Iran-Contra's counterpart 
of Watergate's Sam Ervin—a conservative who cares about 
Constitutional Law.") 

But our invitation would be an empty gesture: we know that 
the same men we probably would trust, for "Personal Government" 
and "Rule of Men", would decline the invitation because of their 
belief in "Impersonal Government" and the "Rule of Law". 


2J Baptists (one of whom was Martin Luther King, and a faithful 
multitude of whom are also black) may find it interesting that 
under lists of Protestant religions the group called "Dissenters" 
includes Congregationalists, Quakers, Unitarians (like Senators 
Cohen and Packuood), and Baptists. In theory these Dissenters, 
who have sought tolerance for their dissent, could be—and in 
most such denominations are—among the most tolerant of 
Christians, since they are "congregational": either having no 
formal leaders or having "non-governing" leaders. In short, they 
at least in theory are people who think for themselves, rather 
than meekly obey authoritarian or demagogic leaders. 

And Mormons might ask if the discrimination suffered by them 
from "Gentiles" in New york, Missouri, and Illinois (and a mob's 
murdering of Joseph Smith), and their faith's fervent belief in 
the interdependence of spiritual and temporal life, require them 
to insist that others observe such rigorous interdependence. 

Most of us who belong to other Christian or non-Christian 
religions Beek to reflect our spiritual beliefs in our temporal 
lives, but our fallibility is apparent even to us. (Senator 
Simpson has noted at the confirmation hearings that all Senators 
on the Judiciary Committee "have flunked the test of perfection", 
and added "That's the way it is. It's called real life.") Since 
most of us expect and need tolerance, should not we also—from 
self-interest, as well as fairness— bestow it upon others? 


-33- 


88-374 0 - 89-33 



3732 


Perhaps Attorney General Keese has been getting bad 
advice: he has said that "each of the three coordinate branches 

of government created and empowered by the Constitution—the 
executive and legislative no less than the judicial—has a duty 
to interpret the Constitution in the performance of its official 
functions", and that the Supreme Court's interpretations of the 
Constitution do not establish a "Supreme Law of the Land." The 
first is a seemingly innocuous statement, but the Executive 
Office has shown that this pronouncement has also been extended 
to congressional statutes as well as to the Constitution, and 
that such "duty" to interpret has become a much-axarcised "right" 
to interpret—and thus to justify Personal Government. 

The pronouncement's impact is twofold. One is discussed in 
the following section of this Statement. The other is that the 
executive branch is deemed to have the right to interpret, and to 
determine the constitutionality of, any statute er executive 
action. That is the Rule of Men, not the Rule of Law. At the 
federal level, that also strikes at the very heart of not only 
the concept of separation of powers, but also the concept 
(established in Harburv v. Madison in 1(03, and accepted since 
then) that it is the Supreme Court which has the sole federal 
power to decida, finally, on the constitutionality and correct 
interpretation of both federal statutes and the Constitution—and 
thus to declare what is the Supreme Law of the Land. 

Americans have seen instances of Personal Government in most 
administrations, but saw the inevitable and extreme Personal 
Government consequences of the Meese rationale as they watched 
the Iran-Contra hearings: two obviously dedicated and patriotic 
men, a Licutanant Colonel and an Admiral, expeunded at length on 
their and others' personal interpretations ef federal statutes 
(except, when convenient, they declared that they were not 
lawyers). The Colonel said, for example, that be knew that it 
was illegal for the CIA to give certain information to ethers; 
but as he interpreted the relevant statute it was lawful for the 
CIA to give him the information, and for him to give the 
information to others. (Does that pass the Traffic-Court test?) 

Americans also learned that t*e Colonel and the Admiral, and 
others in the executive branch, chose to implement such personal 
interpretations by misleading Congress and without first asking a 
court to determine the correctness of such interpretations, which 
they knew were different from those of many or most members of 
Congress. Later expressing his own personal interpretation, our 
President's description ef the hearings was that he hadn't heard 
anything about any laws being broken. Perhaps he is right, in 
which case the Iran-Contra independent counsel (the current term 
for "special prosecutor"), and the federal courts, will not reach 
a different conclusion. 


- 34 - 



3733 


Personal Governmen t—the J ustice Department 

This section is prinarily a summary [except for our 
comments, which we have tried to enclose in brackets] of an 
article written by a man who, during a period of more than two 
years, interviewed most Supreme Court Justices, numerous Court 
"clerks" [cream-of-the-crop law school graduates], all living 
persons who have served as Solicitor General of the United 
States, many of the Solicitor General's staff [also cream-of-the- 
crop], and numerous other lawyers .*J 

[Non-lawyers neither know nor care about the Solicitor 
General.] He argues the executive branch's cases in the Supreme 
Court. The Solicitor General is part of the executive branch's 
Department of Justice, and thus is technically under the control 
of the Attorney General. But the Solicitor General also has an 
office in the Supreme Court building, and is sometimes called the 
"Tenth Justice" because of his intimate connection with the 
Court, and his influence upon the Court. 

The solicitor General walks a tightrope between the 
executive and the judiciary: he must represent the executive's 
position, but is relied upon by the Court (which has only a 
limited staff) for independent, thorough, and unbiased legal 
advice and assistance. 

So strong is the heritage of the Solicitor General's 
independence and freedom from political pressure, within the 
Justice Department, that by tradition the Attorney General does 
not normally give advice, let alone orders, to the Solicitor 
General. The Attorney General is asked for his advice—if the 
Solicitor General wants it.««/ 


*J The article is "Annals of Law: The Tenth Justice", by Lincoln 
Caplan. It is lengthy, and was published in two parts, in the 
August 10 and August 17, 1987 issues of The New Yorker —which is 
renowned for superb and thoughtful writing. The excerpts on 
pages 27, 34-38 and 45 are taken from these issues of The Mew 
Yorker and are subject to the magazine's copyright. The use of 
the excerpts does not imply an endorsement by The New Yorker or 
Lincoln Caplan. 

*«/ This conclusion was confirmed in an unprecedented Justice 
Department memorandum on the role of the Solicitor General. This 
was prepared in 1977 when certain Cabinet officials in the Carter 
administration complained that they had not been allowed 
sufficient influence over the Solicitor General's office. The 
(Cont'd) 


- 35 - 



3734 


Under the current administration, the situation has changed 
in the last several years. "Judicial restraint" means judicial 
activism to the President—achieving in the courts what he could 
not achieve in Congress. The President explained in June of 
1986, in a Los Angeles Times interview: "Hell, you have found 
that Congress has been unwilling to deal with these problems that 
we brought up". And when asked whether he agreed with Patrick 
Buchanan's statement that "If you get two appointments to the 
Supreme Court it could make more difference on your social agenda 
in achieving it than twenty years in Congress", the President 
said “Yes." 

[Such attitude has given rise to references to this 
administration's "litmus test" (a now tiresome phrase): that a 
person will not be nominated to federal courts (now 40% staffed 
by Reagan appointees), especially the Supreme Court, unless he 
demonstrates fealty to the social agenda. This test and the 
reactions to it from potential candidates have been amply 
reported in the press. The comment in Life that "some believe 
she [Justice O'Connor] was dropped from consideration as Chief 
Justice because she strayed from the conservative wing on key 
cases . voting for expanded libel protection for the press and 
against school prayer" (emphasis ours), indicates that even 
partial disagreement on the social agenda may be a sin more 
cardinal than venial.*/] 

A theme running throughout the article is that the same 
adherence-to-creed requirement has been applied to appointments 
to, and activities of, the Solicitor General's office. As to 
appointment of the Solicitor General, a lawyer in the Solicitor 
General's office said "The Attorney General made it absolutely 
clear how far the government was going to go. Charles couldn't 
afford to give a hint of ambivalence about the [abortion) 
position or he would have dropped out as a candidate for the 
post." With respect to pressure from the Attorney General and 


article in The New Yorker quotes lengthy portions of the memo, 
including that the Solicitor General "must "do justice"—that is, 
he must discharge his office in accordance with law and ensure 
that improper concerns do not influence the presentation of the 
Government's case in the Supreme Court" and that "the Attorney 
General and the President should trust the judgment of the 
Solicitor General not only in determining questions of law but 
also in distinguishing between questions of law and questions of 
policy". 

ZJ [As an aside: women like Margaret Thatcher, Golda Heir, and 
Indira Gandhi have successfully led nations. He would have no 
problem whatsoever with a female Chief Justice.] 


- 36 - 



3735 


others on the positions taken by the Solicitor General's office, 
and to such other matters as appointment of a "political deputy" 
as Deputy Solicitor General to act as an intermediary between the 
Attorney General and the office, and the active involvement of an 
Assistant Attorney General in the office's decision-making, the 
article is replete with details—and well worth reading. 

The extent of these politicizing actions, and the incursions 
against the independence and integrity of the Solicitor General's 
office, is unprecedented. [We have heard of nothing remotely 
approximating them in any prior administration. Republican or 
Democratic, or moderate or liberal or conservative.] 

The consequent change in Supreme Court Justices' and their 
law clerks' attitudes toward the Solicitor General's office was 
predictable. From the clerks [the best and brightest law 
graduates, like those in the Solicitor General's office]: "We 
don't trust the s. G.'s submissions the way previous law clerks 
told us they did”; and "Now he [the Solicitor General] omits key 
cases—and in the law that is a form of dishonesty--or he sneaks 
around precedents [earlier court decisions]. This is not just a 
bureaucratic squabble. It's a break with a long tradition"; and 
"This isn't something I want to be part of. It's tainted. The 
office doesn't seem to be a place where integrity reigns. It 
might change but not for a long while." 

The effects within the Solicitor General's office have been 
dispiriting. The article explains, in impressive detail, how 
staff members who have stayed, and new staff coming in, have had 
reactionary orthodoxy imposed upon them. And part of the 
article's description of the reaction of the assistants in the 
Solicitor General's office is that "they seemed to be a wounded, 
bewildered lot. They were contemptuous of what they considered 
crude legal notions emanating from the A.G.'s office". 

Seven of the nine Justices were willing to speak: One said 
that the Solicitor General's standing as an advocate was still 
relatively high, especially among members of the Court's right 
flank, and that "His [the Solicitor General's] writing always has 
influence....[Former] Chief Justice Burger [whose retirement led 
to the appointment of Judge Scalia as an Associate Justice], 
Justice O'Connor, [and the present Chief] Justice 
Rehnguist—they've always bean interested in what the S.G. says, 
and gain support from his briefs for positions they want to 
espouse.” But one Justice said the Solicitor General's office is 
too aggressive; another, that it is too supercilious; and 
another, that it is too willing to be a spokesman for the 
"reactionary" Reagan Administration. One Justice said: "I'm a 
little biased, 1 suppose. I think that Archibald Cox and Erwin 
Griswold [each a former Solicitor General] got it right. They 


-37- 


i 



3736 


thought they had a basic responsibility to the Court as well as 
to the Administration, and they were not the political voice of 
the executive branch." 

[Archibald Cox and Erwin Griswold are—in the opinion of 
virtually all lawyers in our group and, we believe, most lawyers 
among Judge Boric's supporters—men of impeccable integrity, and 
among the most distinguished and respected of America's lawyers 
and legal scholars. Hr. Griswold, a Republican and a long-time 
dean of Harvard Law School, was appointed as Solicitor General by 
President Johnson.] 

More from the Justices: "It's ideology, pure and simple. 
It's an assault on settled practices." And "I'm not even sure in 
some cases that the facts are accurate. In the past, I didn't 
have that uneasy feeling about the S.G., but today I do." And 
"What we're saying to him [the Solicitor General] and the other 
people in the Justice Department is simple: "Listen, you guys, 
you're just dead wrong. This is an abdication of your 
responsibility." The notion that the S.G. has no obligation to 
help the Court is an outrage." 

[The foregoing may be of no interest to non-lawyers. We can 
assure them, however, that the questions of whether a lawyer's 
"word is good", and of whether we hear "straight talk" from him 
or her, are not matters on which you will hear much levity from 
the lawyers in our group.] 

— A Likely Concern — 

The nomination of Judge Bork is, as should be clear by now, 
merely symptomatic of a more pervasive and perversive problem: 
the accomplished politicizing of the Justice Department and the 
attempted (and, to a marked extent, accomplished) politicizing of 
the federal judiciary, primarily in pursuit of a social agenda. 
("Politicizing" is too gentle a term; "subverting" may, but only 
may, be too harsh.) We have witnessed an unsettling degree of 
Personal Government. 

Moderate and liberal Senators have for many years been 
reluctant to oppose Supreme Court nominations. Conservative 
Senators seem to have shown less reluctance, as evidenced by the 
Fortas controversy discussed earlier.*/ 


2J And by the confirmation proceedings of the eminent 
conservative. Justice Frankfurter. We recommend John P. Frank's 
Marble Palace , as well as his numerous other books and articles 
on the Supreme Court, to those persons (of whatever persuasion) 
(Cont'd) 


-38- 


3737 


A vital point, however: traditionally, an essential cause 
and concomitant of Senate restraint has been Presidential 
restraint. Presidents have usually nominated persons who fall 
within the traditional liberal-moderate-conservative 
mainstream. Ideology has often, perhaps usually, been a 
factor. But most Presidents have had broader, usually economic, 
considerations in mind. Prior to World War II, the major 
difference between liberals and conservatives was primarily in 
their views toward economic regulation (and, especially prior to 
the Civil War, their views on the relative powers of state and 
national governments). 

The current President's "social" agenda ig primarily social, 
in that it is directed in part at American's private lives 
(abortion) and religious views (school prayer). But with respect 
to blacks, it is also a political agenda (equal representation) 
and economic agenda (affirmative action). The common credo in 
the agenda is that Authority may intrude upon the privacy, and 
repress the political and economic rights, of the Individual. 

A further distinction is that the litmus tests of earlier 
Presidents have not been accompanied by an "anything goes" 
approach to federal court appointments. Earlier Presidents have 
normally respected the Constitutional independence of the federal 
courts. (See App. B, however, for brief discussion of the 1937 
court-packing attempt.) 

The lack of restraint in this Administration's nominations 
has been startling, and the confirmation of certain prior 
nominees to federal courts should perhaps be attributed more to 
inattention by the Senate, lawyers, and the press than to any 
other factor .*J 


who seek further information on Supreme Court appointments and 
history. Hr. Frank is a fine lawyer, of unquestionable 
character. In his books he provides a combination rare among 
lawyers: scholarship and readability. 

*/ In this area, as in some others, it probably is unfair to 
blame the press too much. Few newspapers have lega1-reporters. 
We salute The Mew York Times , for its extensive and continuous 
reporting, both before and during Judge Bork's five days of 
testimony; The Washington Post , if not for editorials then at 
least for a lengthy analysis of Judge Bork (which was carried as 
a three-part series by such smaller papers as New Hampshire's 
Cfi BP flEfl-MPnitar ); and the Chicago Tribune , for reporting at 
length on the first two of the five days of Judge Bork's 
testimony, and for its stimulating editorials—that do not 
disclose that they are written or approved by a friend, and 
(Cont'd) 


-39- 



3738 


Our Preparation 

Our lawyer's group has studied most of Judge Bork's 
writings, and a seemingly endless number of magazine and 
newspaper articles, columns, and letters to editors. We also 
reviewed materials and reports prepared by various individuals 
and groups (including the White House's July 31 package of 
materials sent to Senators). We held three meetings at which we 
listened to addresses from two law-school deans and one of the 
country's most highly-regarded, conservative, constitutional law 
professors. We also conducted our own legal and historical 
research. Not least (although most of the prior part of this 
Statement was drafted earlier), we waited for and listened to 
Judge Bork's testimony at the Senate hearings. 

Judge Bork's Proponents 

We have studied the articles and columns of Judge Bork's 
supporters, perhaps even more closely than we have studied his 
opponents'. Brief responses to some of his supporters' comments 
and arguments are in Appendix B. 

The Chicago Tribune reported on September 9: "In a speech 
to political appointees summoned to the white House", the 
President "sought to portray his conservative nominee as a 
political moderate" and not, as critics have charged, "some kind 
of right-wing ideologue". Newsweek said on September 14 that 
Judge Bork "is certainly not, as the Reagan White House has 
recently tried to portray him, just another political moderate", 
and quoted a senior white House aide who said that such portrayal 
is a mistake, and who added: "The truth is that he is a right- 
wing zealot. But that doesn't mean every decision he makes has a 
right-wing bias to it." (Emphasis is aide's, not ours.) 

There is little need to respond to the comments depicting 
Judge Bork as a moderate, or to describe what the press has 
covered well: the clash between Justice Department "ideologues" 
who wanted to let the extremist aspects of Judge Bork emerge 
openly (as was done in speeches to conservative groups), and the 
White House "pragmatists" and the image-makers (one of whom has 
attended the hearings and accompanied Judge Bork on Senatorial 
interviews) and lobbyists retained by the White House. Evidently 
the pragmatists carried the day, presenting Judge Bork as a 
"moderate" or at least as a judge no more conservative than 
Justice Powell. 


former student and Justice Department colleague, of Judge Bork. 


-40- 



3739 


We applaud Judge Bork's apparent refusal to attend more than 
one of what Wewsweek tells us is known as a "murder board" within 
the administration—a mock trial of tough questions and answers 
to prepare a nominee for Senate questioning. And we have seen no 
public indication that he sought advice from the image-makers; we 
have seen a "new" Judge Bork at the Senate hearings, but perhaps 
he is heeding only his own instincts. Judge Bork is his own man, 
and evidently did most of the preparation for the hearings. We 
respect him for this. 

It is equally true, however, that Judge Bork's moderation at 
the hearings is difficult to reconcile with the injudicious 
language and contempt of most of his speeches and writings, even 
the recent ones in 1985, 1986, and this year. We will not 
discuss that further, but it is reflected, in part, in the 
comments of Judge Bork's Yale Law School faculty colleagues and 
friends: any interested reader might compare the substance and 
tone of those comments (quoted in The New York Times ) before 
Judge Bork's testimony began (see July 27 issue), with those 
after two days of testimony (see September 18 issue). A milder 
characterization of the latter comments is that his testimony 
"seems to be leaving his former colleagues more pained than 
proud." One quoted professor is both candid and humble; "I 
think he's had it, but my intuitions of American politics are 
notoriously bad." 

Our intuitions are no better: In the Iran-Contra hearings 
Americans had to decide, for themselves, which members of 
Congress were talking "straight", and which with "forked 
tongues". Americans have the same task again—and with some 
repetition in the Senators who are involved. 

There are some intellectual heavyweights among Judge Bork's 
supporters. These are the ones we studied closely—to see if we 
had missed something in our own analyses. (We will not diBcuss 
here the superficial and "clever" arguments by less prepossessing 
writers.) 

We are struck by one recurring these among the heavyweights 
we respect: with very rare exceptions, they sometimes discuss 
his court decisions, but usually do not discuss the merits of 
Judge Bork's specific extra-judicial views and theories. They 
applaud his intellect, his personality, his experience, his 
"judicial restraint" (or at least his "belief" in or "respect" 
for it), end the fact that as a Circuit Court Judge he has never 
been overruled. 

The Judge's supporters fail to mention that, as he stated in 
the Dronenbura case, Judge Bork at least nominally accepts that 
as a lower-court judge he must obey the rulings of the Supreme 


-41- 



3740 


Court; the Dronenburq case includes an interesting commentary by 
other judges on the unrestrained "activism" of Judge Bork's 
opinion. He respect him, however, for such nominal acceptance. 
But Senators will be reviewing the court opinions, including 
gratuitous commentary, in which such acceptance seems to have 
been only nominal. Senators also will have to decide whether 
more weight should be given to his court opinions, on which he 
concedes he is constrained, or to his extra-judicial articles and 
speeches, where the only constraints are self-imposed. 

Some of the heavyweights, and many other proponents, 
deplore discussions of ideology—although it clearly was Judge 
Bork's ideology, perhaps more than hia acknowledged intellectual 
prowess, that gained him the nomination he sought. (Such 
proponents are silent on the Fortes controversy, discussed 
earlier under "Nonsense and Sense".) 

They also castigate the use of only "snippets" of Judge 
Bork's comments (that word is becoming as tiresome as "litmus 
test"). The "snippet" argument of Judge Bork's proponents seems 
unsupported. Host serious analyses, of the many we have seen, 
have fairly reflected Judge Bork's statements and opinions, 
whether the quotations used have been snippets er lengthy. The 
unfair ones are those that fail to raflect genuine changes in his 
views, where such changes have in feet occurred. Me have, for 
example, read extensive quotations frem Judge Bork's pre-Nixon 
period, describing at length his reservations about exclusive 
reliance on drafters' "intent" (the principal passage was quoted 
by Senator Specter at the hearings and ia one with which meet in 
our group, and probably most lawyers, agree), and, equally 
extensive, more recent quotations and articles describing his 
current reliance on such "original intention". In both cases, we 
at least learned his views, which is all we sought. 

He are troubled more by the absence of snippets, let alone 
extensive quotations, from Judge Bork's heavyweights; we learn 
little, and are given almost nothing with which to either agree 
or disagree. 

Judge Bork's supporters ominously warn urn that the choice is 
between Judge Bork and "mediocrity"—that one or another eminent 
Justice would never have been confirmed if the senate refused to 
confirm strong, controvarsial persons. 

The "mediocrity" argument has potential merit, if presidents 
were in feet to nominate only non-controversial parsons. Thera 
have been mediocre Justices, but we will leave to those more 
learned the question of which mediocre Justices were appointed 
because they were non-controversial, and which because they were 
carefully selected by presidents but happened to be mediocre. 


—42— 



3741 


Do not most of us agree, however, that sene of the finest 
Justices were controversial, but were confirmed, and nonetheless 
were within the traditional liberal-moderate-conservative 
spectrum? This curious argument about "mediocrity" also seems to 
imply that to get the best we must not reject an extremist, and 
that a mere moderate, or a traditional liberal or conservative, 
cannot be a brilliant or otherwise exceptional person wbo would 
be a praiseworthy addition to the Court. 

Judge Bork's proponents also remind us that traditionally it 
has been proper to consider a nominee's general theories, but 
improper to ask how he would vote on a specific matter. We will 
address this later. 

Then there is "judicial restraint" and "original intention", 
discussed earlier (but rarely mentioned by Judge Bork's 
heavyweights, who in our opinion regard this as one of the "crude 
legal notions emanating from the A.G.'s office", discussed 
earlier). 

Any law-school student who has completed his introductory 
Constitutional Law course should be able to answer all but 
questions 4, 13, and 14 (regarding the nature of the federal 
court's "judicial power", the people's rights retained under the 
9th Amendment, and the states' and people's powers reserved under 
the 10th Amendment) of the IS questions we directed earlier to 
original-text proponents. The student may have answers, but they 
will be mostly guesses, for questions 4, 13, and 14. If they can 
partly answer question 4 (regarding "judicial power"), we commend 
them because it will reflect some familiarity with English common 
law and England's legal and political history. 

The student's answers to several of the other questions 
will, however, demonstrate that until roughly the second half of 
this century, the Supreme Court has usually been conservative, 
and that judicial "activism" has come primarily from conservative 
courts. *J 


*/ If Americans accept Judge Bork's majoritarian concept of 
judicial restraint—that the Court should normally defer to the 
majority's will as expressed through legislatures—they must 
condemn the 20th Century pre-1937 conservative Court for 
invalidating all those statutes by Congress and state 
legislatures, and they must applaud the post-1937 more liberal 
Court for not invalidating such statutes, including the Social 
Security Act and the various pro-labor and pro-civil-rlghts 
statutes. 

Most activism by a liberal Court was in the 1950’s-1970's, 
(Cont'd) 


-43- 



3742 


Thus at least when applying Judge Berk's majoritarian theory 
(the apparent setting for most current discussions of "judicial 
restraint"), people have short and mistaken memories about which 
Courts were restrained and which were activist. 

Judge Bork 

Prior to the commencement of the hearings, we drafted 
preliminary analyses of Judge Bork's views, opinions, and court 
decisions. We then realized, however, that such analyses have 
already been drafted, to an impressive and even appalling extent, 
by many other groups—some supporting and some opposing the 
nomination. 

It is unlikely that our detailed analyses would provide 
either fresh information or fresh insights. We therefore have 
chosen to state only, or primarily, our conclusions. 
Substantiation for these conclusions is available from others' 
works that have been submitted to the Senate and the press. We 
urge study of the compilations (including the White House's, 
which cites as many decisions as most other compilations). We 
also urge publication of their highlights or details, by the 
press. 

Our conclusions follow: 

— Judicial Restraint, as "Original Intention" 

This has been discussed above, and by others. The "original 
intention" (or "interpretivism") theory is too simplistic, and 
does not work. But traditional "judicial restraint"—in the 
sense of moving carefully and judiciously, and giving earnest 
consideration to precedent—remains as valid a concept as ever. 

— Emphasis on Theory 

This is perhaps the most complex, and perplexing, aspect of 
our review of an intelligent and complex man. A consistent theme 
in Judge Bork's works appears to be an almost obsessive need to 
develop intellectually respectable theories. 

Our concern is not with a quest for such theories. This 
quest is shared by judges, professors, and lawyers in private 
firms. An intelligent person should push and develop his 
intellect—then exercise it, when appropriate, in developing 
theories. (We think it is incidental and irrelevant that, as a 


and dealt mostly with matters involving the privacy rights of 
individuals, criminal law, and various rights for blacks. 


- 44 - 



3743 


result of such efforts, one is or is not deemed to be "an 
intellectual".) 

It does, or did, not seem to be irrelevant to Judge Bork. 
There seems to have been a quest for intellectual respectability 
as such, accompanying his guest for theories; this too, however, 
is a common and harmless affliction. Then, strangely, in recent 
years an anti -intellectual strain has appeared, as he has adopted 
the crude "original intention" theory and has derided persons who 
have "upper middle class values" and profess to see a moral basis 
in the law. 

To most of us, "unprincipled" means to lack honesty and 
integrity. Judge Bork uses the term differently, adopting 
Professor Wechsler's concept of "neutral principles", under which 
a decision that is not based upon a general and neutral principle 
becomes "unprincipled"--especially, if we understand it 
correctly, if the decision reverses early Court decisions. We 
respect professor Wechsler's work in constitutional law, and we 
can accept this terminology. 

But we are perturbed by Judge Bork's emphasis on this and 
other theories--and the consequences of his emphasis. (Not 
incidentally, we should mention that Professor Wechsler regarded 
the abortion brief of the Solicitor General's office, in the 1985 
era of Attorney General Meese, as "presumptuous" and "a mistake", 
because of the recent affirmation of the 1973 Roe v. Wade case 
and the fact that the membership of the Court had not changed. 

See The New Yorker article referred to in the footnote on page 
35.) 

— Ppwg r a nd_&Tii or 3l i fcy 

Since about 1971, when he was 44, Judge Bork's theories seem 
to reflect amorality*/ and to respect only power. The amorality 
seems to have arisen in large part from (i) Judge Bork's 
background of Chicago-school economic theory, with its stress on 
moral relativism, (ii) his infatuation with, and possible 
distortion of, Professor Wechsler's concepts of neutral 
principles, and (iii) his apparent obsession with theory, of one 


*J We will stress only once, but firmly, that we are not 
discussing Judge Bork's private views or actions. His private 
morality and tolerance have been demonstrated in his marriages 
and family life, and in his courageous stand against his law 
firm's earlier, but not present, anti-Semitism. We respect and 
envy his personal warmth and devotion, to both family and 
friends. 


-45- 



3744 


kind or another. The respect for power came perhaps, in part, 
from the above economic theory, and in part merely to fill the 
vacuum created by the amorality. 

The foregoing discussion of causation is conjecture, and 
probably impertinent and presumptuous. He are confident, 
however, in our conclusions about the resulting emphasis on 
amorality and power. This emphasis is reflected in Judge Bork's 
theories, in his court decisions, or in both. 

— Maioritarianism 

This important theory by Judge Bork states in effect that 
since there is no basic, controlling set of moral values, 
individuals and courts should defer to the moral values of the 
then-existing majority, as expressed in statutes of 
legislatures. Hence "might", the will of the majority, makes 
"right". Not "right makes might", as Sophocles in effect said 
(see Appendix A, p.4). 

The development of this concept was aided, of course, by 
first dismissing the Bill of Rights (as a "hastily drafted 
document upon which little thought was expended"—a now much- 
quoted statement), and then trivializing "rights" by defining 
them as competing claims to "gratification" (which is, 
incidentally, a very ambiguous word that can mean, for example, a 
reward or a gift or a payment). The trivializing helps 
enormously: if a right is merely a claim to 

gratification—perhaps something that, if you are very good or 
very lucky, the tooth-fairy may leave under your pillow—it 
becomes much easier, and more superficially "reasonable", to rid 
oneself of one's immature reverence for so-called "rights", and 
to accept that one's individual "rights" should be subordinated 
to the "rights" of a majority or the government. 

The majoritarianism theory works in harness with original- 
intention, but probably is the more important of the two, in its 
usefulness in achieving consequences important to this 
Administration: a state legislature's acts are deemed to reflect 

the will, and moral values, of the majority in a state,!/ and 
because of the majoritarianism theory, must take precedence over 
the claims of "rights" by individuals. Then several things 


*J This concept may give one pause, in light of the frequent and 
disproportionate influence of (i) paid lobbyists, (ii) highly 
organized and vocal special-interest groups (from anywhere in the 
political and economic spectrums), and (iii) individually or 
collectively large campaign-contributors (again, from anywhere). 


-46- 




3745 


happen: since the 14th Amendment has bIbo been derided by Judge 
Boric (as reflecting a mere "value choice" or "value impulse" of 
men who "had not even thought the matter through"), the 14th 
Amendment may not cause the 5th Amendment's protection of 
individuals' rights to be extended to state action. But if the 
14th Amendment does protect individuals from state action, all is 
not lost: the original-intention theory can still limit the 14th 
Amendment's protection to only those rights explicitly enumerated 
in the Constitution's text (or, if more limiting, the rights that 
the framers intended to protect). 

The juxtaposition of the above two theories leads, not 
strangely, to implementation of the President's social agenda. 
Abortion and privacy matters, school prayer, busing, affirmative 
action, and equal-representation—all can be addressed by state 
legislatures and, bowing to majoritarianism and original- 
intention, the federal courts must not be "activist". It is 
"reasonable", and works beautifully. 

The theories are complemented, of course, by theories of 
others. When the Attorney General claims that any branch of 
government should interpret the Constitution and that the Supreme 
Court's interpretations are not the Supreme Law of the Land (see 
page 34), then it is not only the Justice Department, Solicitor 
General's office, and White House staff that may do the 
interpreting: so can the lower federal courts. In the Alabama 
Jaffree school-prayer case discussed above (see page 27), the 
federal district court judge had upheld all three versions of 
Alabama school-prayer statutes, and said that Alabama has the 
power to establish a state religion if it chooses to do so. 
(According to the profile of this judge, William Brevard Hand, in 
the 1986 Almanac of the Federal Judiciary . The Hall Street 
Journal issued a 1983 "editorial [that] praised Hand's decision 
in the school prayer case. The Journal said that Hand had done 
the republic a service bv issuing an unusual and controversial 
opinion ." (Emphasis ours.) 

The Attorney General also complemented Judge Bork's (and his 
own) theories by complaining at an American Bar Association 
annual convention that an (activist) federal judiciary had 
entered into an area (abortion) "once clearly reserved, under our 
Constitution, for the states themselves to decide" (see question 
14 on page 23, regarding the unspecified powers reserved by the 
10th Amendment to the states or the people). The Attorney 
General thus divined not only that the "power" to make abortion 
decisions was reserved to the states instead of to the people, 
but also that such "power" was among those "powers" not 
enumerated in the 10th Amendment. (He had to focus upon 
"powers", because the 9th Amendment's reservation of "rights" 
applies only to those retained by "the people".) 


-47- 


3746 


The theories are also complemented, of course, by careful 
use of words and phrases that sound reasonable and eminently 
fair. The President tells us that Judge Bork "won't put his own 
opinion ahead of the law." The Committee will receive ample 
evidence to the contrary, based upon opponents' compilations we 
have reviewed. The New York Times noted on September 13 that 
"Judge Bork has complained that the " liberty" of the majority "is 
increasingly being denied" by the Court 'b "creation of new 
rights" for individuals, such as the right to privacy in intimate 
sexual and family matters." (Emphasis ours.) 

That sounds reasonable, even admirable (although reminiscent 
of the Judge's concern for that oppressed minority comprising 
hotel and restaurant owners): we certainly do not want Our 
courts denying the "liberty" of the majority by recognizing 
individuals’ so-called rights to privacy.*/ It seems not 
important if the actual majority in a state opposes prohibiting 
abortions (see polls, and see footnote on page 46), but a 
strident minority gets an anti-abortion bill passed; the statute 
then becomes "the will" of a political "majority", to be condoned 
by the courts because the court must show "judicial restraint" 
and recognize the [probably actual 1 original intention of the 
state legislators. It also is not important if the actual 
majority does in fact support the legislation; the statute will 
be upheld under the majoritarian and original-intention theories, 
because there is no explicit right to privacy, let alone to have 
an abortion, in the Constitution-and we will not worry about 
those unspecified rights reserved to the people under the 9th 
Amendment, and we will not worry about what the Founding Fathers 
probably really thought about an individual's right to privacy. 

Forgive our sarcasm: we are letting our annoyance start to 
show. But for more sarcasm; do not worry, corporations and 
other businesses—surely no local, county, or state majority (and 
no influential minority that succeeds in getting a statute or 
ordinance passed) would even think to impose harsh regulations or 
high taxes on you. And surely no local, county, or state 
executive or judicial official will, in his authorized personal 


±/ This theme was picked up in a Chicago Tribune editorial on 
August 16, which said that Judge Bork's opponents "are actually 
standing against the possibility of change, in this case in the 
direction of a more modest use of the court's.power to resist the 
will of political majorities ." (Emphasis ours.) That sounds 
"reasonable"--we all like moderation, and it sounds more 
palatable to talk about resisting our usually-esteemed majority 
rule than to talk, 8 b our forebears did, about the occasional 
tyranny of the majority. 


-48- 



3747 


interpretation of laws, make an arbitrary or capricious decision, 
because all of those deplorable decisions made under the Rule of 
Men, instead of the Rule of Law, are occurring only in 
Washington. 

And if all else fails, we can let state legislatures 
interpret the Constitution, and declare the Supreme Law of the 
Land, at least as it applies to their states. There is ample 
precedent for that, in the Nullification doctrine. Remember the 
1798 Kentucky Resolutions (drafted by Jefferson) and the 1799 
Virginia Resolutions (drafted by Madison), decreeing in effect 
that the states could invalidate any federal acts that were not 
expressly authorized by the Constitution? (By today's standards, 
and by the standards of conservative Supreme Court "activism" 
during most of the last 200 years, those Founding Father heroes 
got carried away—but does not the nullification concept, 
stressing states' rights, arise inevitably from the interpretive 
rights, and majoritarian will, that are at the heart of the 
Attorney General's and Judge Bork's theories?) Later, Jefferson 
and Madison thought, and we have apparently mistakenly thought, 
that Marburv v. Madison in 1803 pretty much settled that issue, 
about who determines the Supreme Law of the Land. 

But South Carolina in the pre-Civil War period, and the 
Attorney General today, seem to have reached a different 
conclusion. (South Carolina "nullified", or declared 
unconstitutional, a couple of Congressional statutes). 

We have digressed, however. The nullification concept 
clearly complements Judge Bork's theories, but with respect to 
interference by Congress with Presidential actions he achieves 
the same result by different theories. 

— Separation of Powers 

An astonishing transformation occurs: when the subject 
changes to federal legislation (instead of the state legislation 
that may permit the Administration's social agenda to be enacted 
in various states), the theory of majoritarianism usually takes a 
well-earned rest. (But beware, corporate clients, that such 
"rest" is merely what is happening now, in practice : in theory, 
and in future practice, there is no reason why majoritarianism 
will not be applied as much to Congressional action as to state 
action, to prohibit intervention by courts.) 

At the federal level, a principal operative theory is, in 
one form or another, separation of powers—and the President's 
actual or implied or "inherent" powers. 

On the pocket veto ( Barnes v. Kline in 1985), the separation 


-4 9- 



3748 


of powers doctrine, combined with lack of standing to sue, seemed 
to suffice. Separation of powers also justified Judge Bork's 
1978 testimony against a statute that required a warrant from a 
special court to authorize executive wire-taps, and his 
opposition to an independent special prosecutor to investigate 
executive action. The President's "inherent" and foreign policy 
powers seemed to justify Judge Bork's rebuffing Congress on the 
Cambodia incursion. The views of Judge Bork in the wire-tap, 
Cambodia, and Abourezk matters (foreign affairs powers of the 
President) seem, especially, to remind one of the Personal- 
Government problems arising in the Iran-Contra affair. 

Judge Bork forgets that Alexis de Tocgueville's comment on 
our courts is about legislatures but applies equally to executive 
acts: "The power vested in the American courts of justice of 

pronouncing a statute to be unconstitutional forms one of the 
most powerful barriers that have ever been devised against the 
tyranny of political assemblies." Members of Congress keep an 
eye on each other. The Court, as well as Congress, must keep an 
eye on the President—any President. 

— Predictability of Judge Bork's Decisions 

We are confident that others will address such issues as 
affirmative action and equal representation, and that they will 
focus on a disturbing conclusion: that it seems to be easier to 
predict Judge Bork's court decisions by knowing the identity of 
the parties than by knowing his theories. 

We shall leave to others, however, to explain the statistics 
and niceties of Judge Bork's rulings on standing-to-sue, and the 
apparent predictability, in his decisions, of victories of 
government over the individual, business over governmental 
regulation, and the President over Congress and the judiciary. 

— Rights of the Individual 

On free speech, most of us like to think that we start from 
100% freedom, and then back off only as truly required. We 
acknowledge that we lack absolute freedom of speech, because the 
clear-and-present-danger exception both is reasonable and "feels" 
right. But we expect maximum freedom of speech, with as few 
limitations as possible. 

To us, it is incidental that freedom of speech exists in the 
Constitution as an unqualified, explicit right that cannot be 
abridged by government; this freedom is one that, viscerally, 
Americans assume is our natural right, regardless of whether it 
appears in our Constitution. But here, curiously, we are willing 
to accept something less than that to which we are expressly 


-50- 



3749 


entitled under the Constitution; but only if the restrictions are 
limited and fair—if they pass the Traffic-Court test. 

Judge Bork approaches it from the other direction, starting 
with political speech and, more recently, evidently adding 
scientific and moral speech. Where does that leave us: 30% of 
most speech is permissible? 70%? Americans prefer the 1001, in 
the text of the Constitution, minus the clear-and-present danger 
restriction imposed by judicial "activism", and minus also 
whatever minimal and reasonable restrictions are appropriate for 
the sensitive areas of (i) literature and photographs for youths, 
and (ii) pornography. Are we missing anything? 

Many of us have read Mill's Essay on Liberty . which includes 
not only his renowned "If all mankind minus one, were of one 
opinion..." passage, but also his "We can never be sure that the 
opinion we are endeavoring to stifle is a false opinion; and if 
we were sure, stifling it would be an evil still." That made 
sense to us then, and it still does. At least we do not have a 
government that requires us to listen; we can decide that a 
person is wrong, or even deranged—and merely walk away. 

As to privacy, most Americans think that our homes are our 
castles. Again, we accept reasonable restrictions. If a 
policeman can get a warrant from a prudent judge, or if he is in 
hot pursuit of a person he has seen commit a crime, or if he got 
a call from neighbors complaining that our raucous party is 
keeping them awake—these are reasonable restrictions, that also 
pass the Traffic-Court test. 

But apart from reasonable restrictions, why are people 
arguing? What has happened to the concept of "mind your own 
business"? Do we, as a minority or majority, really want to push 
something through Congress or our state legislature that intrudes 
into somebody else's private life? Are we that sure that another 
minority or majority will not come along and intrude into our 
lives? We had better first apply the Traffic-Court test to 
ourselves. And if we fail it, we better hope that a court will 
itself apply the test. 

In short, did we need the Court to tell us we have a right 
to privacy? (Granted, it had to, because the "will of the 
majority" had been abused.) But do we want a Judge Bork to 
trivialize and ridicule our right to privacy and other rights, 
and to enunciate and invoke "reasonable" theories that let us 
trample on each other? 


-51- 



3750 


— The Missing Chromosome 

This may, in the end, be the problem with Judge Bork, and 
with too many Americans. 

What is missing in all of Judge Bork's writings is the 
simple, inelegant concept that Individuals, and their rights, are 
important. That America was and remains animated by its 
Individuals and their rights. And that those rights are the only 
fortress for our Liberty. 

A September 17 Chicago Tribune column by Stephen Chapman*/ 
states that "Bork's stress on majority rule neglects the other 
cr u siai pur pa.se < ?j the framers: tp pvt a host of indiyJLdgai 
liberties beyond th? majority's reach." (Emphasis ours.) The 
foregoing says better what we already have said. 

What caught our eye-was Chapman's paragraph about a Harvard 
fellow who transforms words into a photograph: 

"Bork's errors are ones of emphasis. But 
in interpreting the Constitution, emphasis is 
everything. As Harvard political scientist 
Stephen Macedo puts it, Bork sees individual 
rights as islands in a sea of government powers. 

instead of seeing government powers as islands 

in a sea of individual rights. " (Emphasis ours.) 

The other element missing in Judge Bork's writings is 
another simple, inelegant concept: Justice. "EQUAL JUSTICE 
UNDER LAW" is inscribed on the Supreme Court Building. Inscribed 
on the Justice Department building are about eighteen quotations; 
eight mention Justice, like "JUSTICE TO EACH IS THE GOOD of all", 
but many do not, like "WHERE LAW ENDS, TYRANNY BEGINS". 

Justice is a tough word to talk about without sounding 
sanctimonious. It is too abstract, and invites cerebral 
posturing and deception. That is why we endorsed the Traffic- 
Court definition of Justice: test Reasonable with the mind, but 
test Fair, Impartial, and Consistent viscerally. Yes, it is 


*J Chapman says that if Judge Bork had been on the Court over 
the last few decades, "some Supreme Court mistakes could have 
been avoided—notably on abortion and affirmative action. But on 
balance, the Constitution would be a far feebler document than it 
is today, and the freedom of Americans would be perceptibly 
less." 


-52- 





3751 


crude and unsophisticated, but we do not trust ourselves, or 
others, to adorn it with verbal garlands. 

Except for certain of his comments during the Senate 
hearings, we find no evidence in his writings that Justice, any 
more than the Individual, is of consequence. Justice, that is, 
as most of the finer past and present Supreme Court Justices 
define it. Justice Powell understood this, when he said simply 
and humbly that he just tries to do justice in each case. Judge 
Bork seems to think that Justice will result from the proper 
application of proper theories. That will not do. 

Judge Bork fails to realize how we11-developed the American 
sense of Justice and fairness is. He objected to certain earlier 
civil-rights legislation because, in part, he was concerned about 
the dissension and turmoil it would cause (a concern he evidently 
has not expressed about enactment of the social agenda). He 
failed to appreciate the distinctions that Americans can draw, 
based upon their visceral sense of fairness (and perhaps, in the 
case of civil rights for blacks, a degree of shame and 
embarassroent). For example, Americans seem to believe, and we 
agree, that violence and destruction by rioting blacks should be 
dealt with no differently, or less vigorously, than the same acts 
by whites. 

But after the Supreme Court invalidated school desegregation 
in Hay of 1954, 54% of American adults said in a July 1954 Gallup 
Poll that they approved of the Court's decision. (41% 
disapproved.) This was a mere two months after the decision, 
when tensions presumably would still be severe. Similarly, the 
majority seems to have accepted black voting rights, particularly 
since Congressional action followed so shortly after Americans 
watched on television the violent reaction to peaceful black 
marchers in Alabama. {We read that an incoming Congressman is a 
black whose skull was fractured on the bridge at Selma. We are 
uncertain that we, in his position, could exhibit the tolerance 
and restraint that he and other blacks have displayed.) 

Americans have recognized that on such basic matters as 
education, voting, and job opportunities (if not on all 
affirmation action programs), it is simply fair, and right, to do 
what has been done since World War XI by all prior Presidents, 
and by the Supreme Court. 

When most Americans can demonstrate a high respect for 
fairness and justice, we should not accept less from a Supreme 
Court Justice. 


-53- 



3752 


— The Biggest Concern — 

As nay have become clear, our objection is to nore than 
Judge Bork. Let this President or any President nominate a 
traditional moderate, liberal, or conservative. But each 
President should also respect the Rule of Lav, and select a 
nominee who (i) respects the Rule of Law and the rights and 
powers of the separate branches of government, (ii) recognizes 
and respects, intellectually or viscerally, the fundamental 
importance of individuals, and individual rights, in our 
political system, (iii) is judicious, tolerant, and temperate, 

(iv) respects, not ridicules, the judicial precedents established 
by prior, often brilliant, Supreme Court Justices, and (v) is 
aware that the Supreme Court should, though less than the other 
branches, be somewhat attuned to Americans' needs and 
expectations. 

Implicit in the above criteria for Justices is a concept 
that perhaps should be explicit: an essential aspect of our 
political and legal heritage is that such heritage does, in fact, 
include a sense of morality, that there is a difference between 
right and wrong. We cannot define it well, and we do not even 
understand it well. It may be partly intellectual and partly 
visceral. It may arise in large part from our religious views, 
but certainly not from only one religion's views. Just as the 
Golden Rule is a concept echoed in many religions — and is a 
sound principle for persons, businesses, and governments — this 
broad sense of morality is what we seek in our Supreme Court 
Justices and all other leaders. 

The solution to lack of Presidential restraint is not lack 
of restraint by the Senate, but lack of the somewhat traditional 
forbearance—failing to press vigorously to determine nominees' 
views. This can be done, in part, by insisting upon hearing a 
nominee's views of past decisions; this should preserve the 
technical nicety of not asking a nominee to commit himself on 
future cases. 

(A recent CBS-New York Times poll indicates that 70% of 
Americans favor having the Senate select Supreme Court 
Justices. Perhaps, ultimately, that is what America will 
choose.) 

We are likely, however, to remain with the present 
nomination-and-confirmation mechanics for the foreseeable 
future. And that brings us to a depressing conclusion we finally 
reached, one that explains if not justifies this interminable 
Statement. 


-54- 



3753 


Our initial inquiry was solely about Judge Bork. He then 
realized, however, that Judge Bork was nominated primarily for 
his commitment to the President's social agenda. Then the 
difficult part: we would not be worrying about a trivial "social 
agenda" unless (i) one segment of the population insisted upon 
it, continuously, vociferously, and sometimes violently, and (ii) 
the Silent Majority remained silent. 

Earlier in this Statement, we urged the President to help 
unite us, not divide us. But he cannot do it alone, and that is 
a good thing: unity imposed from above is just another word for 
Order, or Repression. In America, if ve want to retain what we 
have, unity must come from Liberty: from most of us choosing 
unity, and working at it. 

The remainder of this Statement will consist of brief 
comments or reflections from within our group. 

— The Easy Answers 

"He are always told by a politician or other leader that he 
has the answers. He always sounds sincere, is often fervent, and 
is sometimes angry. But he's got the answers. Every once in a 
while he does. But how often? It made me look up the definition 
of "demagogue", and my Webster's Collegiate told me that he's 'a 
speaker who seeks to make capital of social discontent and gain 
political influence." That's the kind of leader I hear too much- 
-the one who caters to the worst in us." 

1. Crime . 

"Our courts are a mess, both in criminal and civil cases. 
Long delays and postponements, with lawyers often jousting 
excessively and judges permitting it. On violent crimes and dope 
peddling, moat of us have to delete expletives: we want those 
people taken off the streets. But we're not going to resolve 
this easily. For years we've elected politicians who promise to 
"be tough on criminals", and who will uphold "law and order". Do 
we see less crime, or fewer criminals turned loose, than 10 or 20 
years ago? And we've had an increasingly conservative Supreme 
Court for 10 or 15 years. Has crime decreased? 

"We don't want to pay the bills for the tough answers: 
build more jails and hire more judges, so courts won't have to 
accept so much plea-bargaining, and then insist that judges get 
tougher about not permitting ao many postponements (when 
witnesses may become unavailable). And pay for more drug- 
enforcement officers to reduce the smuggling of drugs to which 
people become addicted—the addicts often commit crimes to pay 
for their drugs. 


-55- 



3754 


"And we don't want to pay for pre-school help and learning, 
or for day-care nurseries so mothers can work, or for better 
education, or for job training—to make it more likely that a 
ghetto youth can become a wage-earning taxpayer instead of a 
roving gang-member. All of this is probably money well spent, in 
the long run—crime is expensive, prisons are expensive, and the 
inmates aren't paying taxes—but are we willing to pay the bill? 

"of course we can take a closer look at the outer edges of 
court criminal decisions, to see if anything should be rolled 
back. But watch out for the basics: most rights of an accused 
aren't judge-made—they're in the constitution—and for a good 
reason. Anybody who applauds himself as "law-abiding" should 
take a hard look at the Constitution, and decide which of those 
rights he wants to give up. 

"The constitutional protections are, except for cruel and 
inhuman punishment, rights not of "criminals" but of persons 
accused of crime—for the simple reason that it was hard to draw 
a line between truly civil crimes and crimes that were political 
(like "disagreeing" with government) or religious (like Galileo's 
saying the earth revolved around the sun or, in America in this 
century, teaching evolution or getting an abortion). And who 
knows what could become a crime tomorrow, if the morality of a 
majority is to be imposed?" 

2. Communism . 

"This subject is also a demagogue's favorite. Remember the 
McCarthy witch-hunting of the early 1950's? Did anybody get 
caught that wouldn't have been caught by the FBI? Maybe, but I 
can't remember any. 

"The effective people against Communism in the late 1940's 
and early 1950's were men like Senator Hubert Humphrey, and 
especially George Meany and Walter Reuther end most American 
unions. Union members should, in Marxist theory, be perfect 
candidates for conversion, but American workers already knew that 
they had more to lose than to gain fro* Communism—they knew that 
■a Communist is one who has nothing, and is eager to share it 
with others." 

"And Americans were more sensible than their lawyers: the 
1955 Britannica Book of the Year states that in August of 1954, 
the American Bar Association rejected a proposal that "to 
effectively combat Communism, Americans need to have an 
understanding of what it is about. Later in the same month, a 
nationwide Gallup Poll found that 67% of American adults said 
they would favor the teaching of the facts about Communism in all 
public schools. 


-56- 



3755 


"So far, we have beaten the Communists at their own game. 
There is nothing wrong with "from each according to his 
ability”—and we have helped people develop their abilities, and 
have given them ample opportunity to use them. On the remainder 
of the quotation, "to each according to his needs", we have been 
relatively generous in helping the needy, but we've added an 
entire extra dimension: to each also according to his individual 
efforts. Bakunin, one Russian theorist, said that in a democracy 
"a privileged minority stands against the vast enslaved 
majority." Which country does that describe today: America, or 
Russia? 

"Lenin worries me more. In 1917, he said: 

"A democracy is a state which 
recognizes the subjection of the minority to 
the majority: that is, an organization for 
the systematic use of violence by one class 
against the other, by one part of the 
population against another.” 

That statement has usually been wrong, as a description of 
America. But it's not entirely wrong now, and (regarding blacks) 
was often true. We discussed earlier both the existing and the 
possible consequences of the President's social agenda, and 
quoted Selkirk's warning about our loss of a sense of 
community. Lenin would applaud the dissension America's 
demagogues have been nourishing. 

"Let's keep watching Russia like a hawk but, to the extent 
sensible and safe, also like a dove. If we can defuse tensions, 
reduce somewhat our huge military expenditures (and the waste we 
keep reading about), and achieve at least partial disarmament 
with adequate safeguards, let's do it." 

— Politics Can Work 


"Our system can often work well, when our politicans listen 
to their constituents. Perhaps it is too recent for its impact 
to be appreciated, but the recent tax reform act is a notable 
example, and is described in a recent book. Showdown at Gucci 
Gulch , by Jeffrey Bimbaum and Alan Murray, two Wall Street 
Journal writers. 

"Most in our group recall being told by our tax colleagues, 
and the press, that the reform legislation would never pass. The 
statute died, and was reborn, about six times. The politics were 
as partisan as ever. 


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"But Senator Bradley and others came up with a compromise 
that satisfied conservatives by lowering tax rates, and liberals 
by deleting loopholes. President Reagan, Congressman 
Rostenkowski, Senator Packwood, and others eventually supported 
the bill. We are told that Congress simply felt shame, about the 
existing tax laws, and knew what the people wanted and would 
accept. So to the surprise of most experts, the statute 
passed.. A remarkable, political achievement. 

"If we and Congress and the President did it once, on taxes, 
we can do it again, on other issues." 

— The Decision in 1787 

"Two of the political theorists known to the Founding 
Fathers were Thomas Hobbes and John Locke. Hobbes felt that men, 
in a state of nature, were selfish and brutish, and formed a 
society to protect themselves from their own anarchy. But in 
such society they agreed to the absolute sovereignty of a leader, 
whom they could disobey only through revolution. 

"Locke felt that men were good, and formed a society only to 
protect their natural rights and independence, and to act through 
a consensus (which, incidentally, means "to feel together”). 

"Our forebears chose Locke, but some of them were concerned 
about our base instincts as well as our good instincts. 

Hamilton's crystal ball, envisioning a prosperous, industrial 
nation, was better than Jefferson's, who assumed that we would 
remain a basically agrarian nation of self-sufficient, 
independent, educated persons. Jefferson feared cities, with 
their poverty and tensions. 

"We have our farmers, the most productive and efficient in 
the world. And we have our towns and cities, with their industry 
that has given America its growth and prosperity—but also much 
of its poverty and tensions. 

"We have severe domestic problems, and we must work at 
them. What Kipling said of England has even more salience in 
heterogenous America, as we celebrate our Constitution: 

■Our England is a garden and 

such gardens are not made 
By singing: — "Oh, how beautiful" 
and sitting in the shade.” 

■Our task in living peaceably together is complex and 
difficult. To succeed at it, we have to recognire each other's 
fundamental rights and insist that our leaders obey the Rule of 
Law. But if our system is to survive, our leaders can only 
lead. The rest is up to us.” 


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9/23/87 


APPENDIX A, TO STATEMENT BY 
LAWYERS FOR THE JUDICIARY 

Our Constitution's Ancestry */ 

To put yourself in the 1780’s world of the drafters of the 
Constitution, it is best to do just that: Forget the 19th and 
20th Centuries, and our cars, trucks, railroads, planes, and 
space shuttles. Our power from oil, gas, electricity, and 
uranium. Our huge cities, factories, corporations, and unions. 
Our machine-made products, and our plastics and other 
synthetics. Our steel, aluminum, and reinforced concrete, our 
ballpoint pens, typewriters, and computers. And our radios, 
telephones, and television. In short, forget most of what you 
see inside and outside your home and your work-place. 

Instead, you are Thomas Jefferson, in 1787. Twelve years 
ago at the request of your colleagues on a congressional 
committee, you wrote the Declaration of Independence. You (who 
will be our 3rd President) are in Paris, as America's envoy to 
France. John Adams (who will be our 2 nd President) serves as our 
envoy in London. Paris has about 500,000 people, London 800,000, 
and New York 60,000; Italy 17,000,000, America 4,000,000. 
Washington, D.C., which you help design, will be founded in two 
years. 

Power for America's agriculture and limited industry comes 
from men, women, animals, wind, and water. 

When you travel, it is by foot, horseback, or sailing ship; 
but the French invented the bicycle eight years ago, and 
Convention delegates saw the launching this year of a boat driven 
by steam. (This steam power will help America's phenomenal 
industrial growth, and its expansion westward with railroads.) 

When you converse, it is in person or by letter. When you 
write (by candle or oil lamp, but fairly soon by gaslight), it is 
with a quill pen, which must constantly be dipped in your inkwell 


*/ We will include various facts, events, and ideas that we 
believe are relevant to an understanding of the 1780's and the 
framing of the Constitution. Our summary will, of course, be 
incomplete. We do not discuss St. Thomas Aquinas, or hundreds of 
other significant persons; or William the Conqueror's invasion of 
England, or thousands of other significant events, we invite 
others to contribute their own historical facts, events, and 
ideas. 


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and sharpened; this will change with wider use of the "fountain 
pen" invented seven years ago--the same year, 1780, that two 
London newspapers began a somewhat unseemly practice: to publish 
on Sunday 

You are 44, the son of a Virginia planter. You are (we are 
told by Encyclopaedia Britannica ) tall and large-boned; slim but 
sinewy; your carriage is graceful, but somewhat loose and 
undignified. Like most of those at the Constitutional Convention 
in Philadelphia, whom you have influenced but cannot join, you 
are affluent (some others are merely well off) and a 
well-educated, white anglo-saxon Protestant. You are a lawyer, 
and a plantation owner. 

Your other serious interests include mathematics and 
science. It is said that you are "an extraordinarily learned 
man", a man with "qualities of personal and intellectual 
distinction" that set you apart from even "the extraordinary 
group of statesmen from other sections of the country" with whom 
you have become associated. You know Italian, Spanish, French, 
Greek and Latin. You invariably are temperate and courteous. 

You are also an architect. Fifteen years ago your slaves 
completed their construction of your house, Monticello, an 
early-American example of the revival of classic Greek and Roman 
architecture. You often have 20-50 guests; each stays a day, a 
week, or longer. 


In preparing the Statement and this Appendix, we relied heavily 
upon several series of books published by Encyclopaedia 
Britannica: Encyclopaedia Britannica itself, the Britannica Book 

of the Year series, and the works edited by Mortimer Adler: The 
Great Books (which includes America's basic Constitutional 
documents and The Federalist papers), Gateway to the Great Books 
(which includes the 1639 English Bill of Rights and the 1776 
Virginia Declaration of Rights, probably the two principal 
antecedents of our Constitution's Bill of Rights), and The Great 
Ideas Program . We also refreshed our memories, or often simply 
learned, by consulting the Bible and numerous books by such 
persons as Samuel Eliot Morison, Adrienne Koch, Oliver Wendell 
Holmes, John P. Frank, Edward S. Corwin, Daniel J. Boorstin, 
Richard Hofstadter, R. R. Palmer, Frederick Lewis Allen, and will 
and Ariel Durant. As we mentioned in the Statement itself, we 
also found useful The Timetables of History . The use of excerpts 
or information from any of the above sources is subject to the 
copyrights of the respective publishers, and does not imply an 
endorsement by any such publisher, editor, or author. 


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(You will also design the buildings and curriculum for the 
University of Virginia. You are spared the Icnowledge that, after 
World War IX, America will convert to look-alike cities of 
sterile glass-boxes, built by architects who until the 1980's 
will say it is "bourgeois” to use color, warmth, ornamentation, 
and hand-craftsmanship, and who scorn natural materials like wood 
and stone. These architects, like you with your more stately and 
elegant Monticello, failed to express the variety and 
individuality of America. But we console ourselves: the rigid 
conformity among modern architects was self-imposed, not 
government-imposed.) 

Perhaps you have heard the works of young Mozart, or the 
much younger Beethoven whose first works were printed four years 
ago. You dance the fashionable minuet and quadrille and, perhaps, 
the latest fad from Vienna, the waltz (but not the Polish polkas, 
the Irish jig, and the American square dance—the lively and 
exuberant dances that will reflect the vitality of a more 
diversified America—or the several Latin dances that Americans 
later will enjoy). 

You hear the moving spirituals of America's involuntary 
immigrants (but not the melodic and jubilant jazz, a 
distinctively American music, they are later to give to us. You 
also lack today's favorite songs and music from men with names 
like Gershwin, Rodgers and Hart, and Rodgers and Hammerstein, and 
wonderful patriotic songs from Irving Berlin.) 

Your cuisine, back in America, is good but bland. (Today in 
a more heterogeneous nation, Americans eat food called "Italian", 
"German", "French", "Greek", "Irish", "Swedish", "Spanish", 
"Mexican", "Polish", "Soul", "Chinese", "Japanese", etc.—and 
Americans are glad to have them all.) 

Yours has been a traditional and continuing liberal 
education, enjoyed by affluent American conservatives, as well as 
liberals, among the Founders. What this liberal education means, 
as you so amptly and aptly demonstrate, is that you individually 
learn . and question and analyze . what your contemporaries and 
predecessors have thought, written, and done. (You and many 
Founding Fathers were better educated than are many lawyers, 
businessmen, and others today.) 

— Greece — 

You know your Greeks and Romans, through the "classic" 
literature (that since World War II has received less 
emphasis). You learned of the Greek word "democracy", meaning 
"power of the people", and its underlying principle of government 
by the people as a whole, not by one person, group, or class. 


A-3 



3760 


You also learned of the tensions between "city-states", and 
between city-states and any attempted central government. You 
have read Plato's Republic (and will re-read it again, in Greek, 
at age 71), which said that "Democracy is a charming form of 
government, full of variety and disorder, and dispensing a kind 
of equality to equals and unequals alike". And Sophocles, who 
said over 2,000 years ago: "In a really just cause, the weak 
conquer the strong." 

In the works of Plato and Xenophon, you read of Socrates 
(whose questioning-and-refuting method is still used in law 
schools today), who instilled in youth the spirit of inquiry , 
which might lead not only to knowledge, but to "justice"—and who 
was forced to drink hemlock by Athenian reactionaries who feared 
new ideas. (Today, Americans are proud, not fearful, when their 
children display "Inquiring minds".) 

You learned also, from Aristotle's Politics (a book that 
even today warrants its bulk on our shelves), an important 
idea: Revolutions break out when the only classes are the rich 

and the poor, and "the best political community is formed by 
citizens of the middle class. Those States are likely to be well 
administered in which the middle class is large, and larger if 
possible than both the other classes, or at any rate than either 
singly? for the addition of the middle class turns the scale and 
prevents either of the extremes from being dominant." (This idea 
is one that our sons and daughters, deriding us as "middle-class” 
in the late 1960's, did not yet understand, and one that Russia's 
leaders may never understand.) 

Aristotle's Politics also noted, succinctly: "Even when 
laws have been written down, they ought not always to remain 
unaltered." 

Many will be surprised to learn that you will, in the early 
years after 1787, advise a narrow interpretation of the 
Constitution, to preserve the people's liberties; they will be 
less surprised, though perhaps discomfited, to learn that 
Hamilton will espouse a broad and flexible interpretation, as 
essential for an effective national government. 

In later years you will lose none of your passion for 
liberty, but will soon agree on the need for a stronger central 
government. You will adopt Aristotle's stance on flexibility of 
laws, when you say: 

"Some men look at constitutions with 
sanctimonious reverence, and deem them like 
the ark of the covenant, too sacred to be 
touched. They ascribe to the men of the 


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3761 


preceding age a wisdom more than human, and 
suppose what they did to be beyond 
amendment. I knew that age well; I belonged 
to it, and labored with it. It deserved well 
of its country . . . But I know also, that 
laws and institutions must go hand in hand 
with the progress of the human mind. As that 
becomes more developed, more enlightened, as 
new discoveries are made, new truths 
disclosed, and manners and opinions change 
with the change of circumstances, 
institutions must advance also, and keep pace 
with the times." 

Sidney Smith, an English clergyman who soon will support the 
oppressed, and ardently attack English laws denying religious 
toleration for Catholics, will say in 1807; "When I hear any man 
talk of an unalterable law, the only effect it produces upon me is 
to convince me that he is an unalterable fool." Strong rhetoric, 
but from a man whose good works may have earned him the right to 
say it. 


— pome — 

You studied Julius Caesar, the populist leader and his—and 
the Roman Senate's and the Roman Empire's—rise and fall. More 
recently, you may have been aided by the publication, begun in 
1776 and completed this year, of Gibbon's Decline and Tall of the 
Roman Empire . You learned of the republican form of 
representative government as an alternative to direct democratic 
government, and decide that with 4,000,000 people the 
representative form is necessary for America. 

The Greek gods were often animistic; derived from the spirit 
or vitality of natural objects like the sun or earth. Their gods 
also combined folk heroes and deities, and included gods of this 
world and of the underworld. The Romans chose many of the same 
gods, but added and ultimately emphasized cult-worship, then 
emperor-worship. This last development proved too meaningless and 
spiritually unsupportive, to all but the upper classes; so Judaism 
and Christianity were embraced by increasing numbers of persons. 

— The Bible — 

You still read the Bible. That is a personal and private 
matter, so few persons know which verses or Books you find most 
meaningful. It is likely that you (like many of us later) find 
sustenance both in the Gospels and in the life of Jesus, who chose 
to live among the lowly and oppressed, who denounced the 
intolerance and hypocrisy of the Pharisees and scribes in their 


A—5 


3762 


strict construction of the letter of Mosaic law, and who was 
sentenced to death for blasphemy—a sentence not stayed by the 
Roman government, which declined to brave the outcries of a 
segment of the public. 

In reaching your conclusions on strict construction (quoted 
earlier), religious intolerance, and the tyranny of majorities and 
minorities, such knowledge of the Bible may have given you useful 
political insights. 

your statement on another appropriate political influence of 
religion on politics is pithy: "The God that gave us life, gave 
us liberty at the same time." Vou incorporated this fundamental 
concept 11 years ago, when you drafted the Declaration of 
Independence. 

THE DARK SIDE : 


— Middle Ages — 

you learned that after the fall of the Rome Empire came the 
thousand years of the Dark Ages and Middle Ages, until the late 
15th Century when the Renaissance flourished—and when an Italian, 
subsidized by Spaniards, became America's first immigrant, albeit 
a temporary one. In this era you found Chaucer, Dante, and St. 
Thomas Aquinas. And, of enormous political and religious 
interest: the developing Holy Roman Empire—an alliance of 

monarchs and the Catholic Church. This alliance has been perhaps 
the most continuously powerful temporal and religious force in 
Europe, but soon will cease to be a political-military force when 
Napoleon causes its dissolution in 1806 (although the Church 
itself will not formally relinquish temporal authority, as to 
lands other than Vatican City, until the Lateran Treaty of 1929). 

As you looked back in Western history, you saw both darkness 
and light. From about 1100 to 1300, the West pursued its 
Crusades, which produced lasting consequences that both benefitted 
and lacerated the world. In 1095, Pope Urban II exhorted 
Christians to march on Islam. To recover Jerusalem and the Holy 
Land. He gave them crosses, the Crusader's emblem; you knew from 
your Latin that "crusade" is from the Latin "crux", or cross. 
Militarily, the Crusades were only partly-mitigated disasters; the 
West obtained access to the Holy Lands, but not dominion over 
them. 


The Crusades ultimately stimulated trade between the West and 
the Near East, spurred the substitution of money for barter, and 
enhanced banking techniques. The west gained both "chivalry" and, 
from the East, valuable and extensive mathematical, literary, 
navigational, geographical, and scisntific knowledge: the 


A-6 



3763 


scholarship and light in the DarX Ages was that of the Moors, 
Moslems, and Jews, not the European ancestors of most of us. This 
transfer of Xnowledge and intellectual leadership to the West went 
notably to Italy, and would soon foster the birth of the 
Renaissance. 

The WeBt and the Moslems paid a high price. The rabble of 
French and German peasants in the first wave of the First Crusade 
slaughtered thousands of Jews. The Fourth Crusade, in 1202-04, 
sacXed a Christian city in Hungary, and thereby earned and 
received papal condemnation; the same Crusade then slaughtered 
Moslems and looted and destroyed Constantinople—and with it the 
Byzantine Empire. Near the end, in the Children's Crusade in 
1212, many of the French youth found themselves sold into slavery, 
by ship captains, and most in the German group's journey died of 
disease and malnutrition. 

Previously, Moslems had been relatively tolerant of their 
conquered Christians and Jews. The Crusades diminished that 
tolerance, perhaps permanently (as Western hostages Know today). 
Worse, the ravaging Crusaders were a reminder of the second 
meaning of the Latin "crux”: to torture, to "crucify". The West 
gained the stain of religious intolerance. 

— intolerance — 

In 1229, the Church's Inquisition in Toulouse, France, 
forbade Bible reading by all laymen. The Inquisition began 
formally in 1233, when the Pope asked the Dominicans (an order 
founded in 1215, the year of the Magna Carta), to investigate the 
Albigenses, a sect in southern France. About 1252, the 
Inquisition began to use instruments of torture. 

Torture and imprisonment have been common punishments; 
burnings, rare. You learned that less than 300 years ago, 
Torquemada and the Spanish Inquisition, the cruelest and most 
intrusive of Europe's Inquisitions, initiated rigorous thought- 
control and tortured and punished individuals who were 
"insincere", and drove 800,000 Jews from Spain. The learning and 
culture of Moorish Spain had been a bright spot in the DarX Ages; 
now (and in 1987) advancements in science, industry, literature, 
and the arts seem to come more from Northern Europe and England 
(and, in the 19th and 20th Centuries, will come also from 
America). The Inquisition in France was not banned until 1772, 
four years before you drafted our Declaration of Independence, 

(and will not be banned in the Papal States until the 19th 
Century). 

In the 1780's, this intolerance is not merely a distant 
memory. Even today, as you in Paris observe events around you. 


A—7 


88-374 0 - 89-34 



3764 


all political power in Europe lies with monarchs and the 
Church—all displaying keen interest in what an individual says or 
does, or even thinks. In this decade, the decade of the 
Constitution, Pope Pius XVI has tried without success to persuade 
Joseph II, Emperor of the Holy Roman Empire, to rescind Joseph's 
decree establishing religious tolerance, and freedom of the 
press. Joseph is one of the few "enlightened despots" or 
"benevolent despots" available for study by you; another is 
Prussia's Frederick William II, and soon another will be Catherine 
the Great. 

Joseph has, with only modest success, tried to make free land 
available to the poor—a privilege Americans have taken for 
themselves, and through their government, in settling America. 
Further, he seeks to abolish slavery, to humanize criminal law, to 
end judicial torture, and to establish two levels for judicial 
appeals. He also seeks educational reform, and to provide free 
food and medical care for the indigent. 

Only a century ago, the Church's Inquisition forced Galileo, 
the Inventor of the astronomical telescope (and a principal 
forefather of modem science), to recant his assertion that the 
earth revolves around the sun. You and the other Founding Fathers 
know that charges of "blasphemy" and "heresy" often are unrelated 
to what you regard as religious matters. 

You know that religious intolerance has by no means been 
limited to Catholicism. Only two centuries ago, England's Henry 
VIII renounced allegiance to the Catholic Church and established 
himself as the head of a new church, the Church of England. 
Restrictions were imposed on civil liberties of Catholics. Most 
such restrictions will be removed in four years, in 1791, for 
those who affirm their loyalty (and most others will be removed in 
the 19th Century, but even in the 20th Century no Catholic may 
ascend to the throne or to certain high political offices). 

You and our other Founders have also known religious zealotry 
in America, by Protestants: the Puritans were famous for their 
"witch-hunts"; and their speech and behavior were rigidly 
controlled, in obedience to their ministers' strict interpretation 
of the Bible. (America will be plagued again by certain of its 
religious leaders—each exhorting his followers not only to adhere 
to their particular religion's views, but also to impose such 
views upon others.) 


— France — 


France, where you stay, is fermenting. King Louis XVI is 
well-meaning, but a "shy" and "stupid" person who prefers hunting 
to ruling. He is not unpopular, but Queen Antoinette’s carousing 


A-8 



3765 


offends the people. And aid to America, in the colonies' 
revolution against France's enemy, has depleted the French 
treasury. 

It will be two years, before the French storm the Bastille 
and issue their Declaration of the Rights of Kan, igniting the 
French Revolution, a true revolution of have-nots. And three 
years, before French Jews are granted civil liberties. And six 
years, before 1793 when the French will execute King Louis XVI and 
Marie Antoinette, among the first of thousands to be executed by 
Dr. Guillotin's "humane" invention; in the same year the French 
will begin compulsory public education—a dangerous practice that 
will permit persons to learn, and perhaps even to question, and 
perhaps even to think for themselves. You regard education as 
pivotal, to America's experiment with democracy--that only 
educated, independent persons can make democracy work And soon, 
in 1795, still another dangerous practice will be introduced in 
France: freedom of worship. You and the other Founding Fathers 

know too much of religious intolerance—and the divisiveness it 
fosters and the religious "crimes" it engenders—to permit 
anything but freedom of religion, and even of lack of religion, in 
America. 

You were born only 28 years after the death of France's and 
Europe's longest-reigning monarch. King Louis XIV, who lived from 
1638 to 1715. You visit Versailles, and its magnificent gardens 
and Petit Trianon and Antoinette's "cottage" (and probably 
acknowledge, as do we, that without the monarchs' and Churches' 
splendid palaces and mansions and churches—using Moslem and 
Moorish techniques, gained from the Crusades, for heavy-masonry 
construction—the West's landscape would be dull). You admire the 
strides taken by Louis in promoting commerce and industry, and in 
developing a civil service to replace nobles for government 
administration. You find less to admire in his suppression of 
domestic criticism, and his revocation of the century-old edict of 
religious tolerance for the Huguenots. 

You note also, however, that Louis was Europe's most famed, 
absolute monarch, the "Sun King" who best scorned the Rule of Law 
with his apocryphal "L'etat, c'est moi!": "I am the State!” 

Thus you have seen, from the early Dark Ages to your present 
days in Paris, the mostly dark side of the West's history. 
Incessant wars that have been (and in the 20th Century remain) a 
staple of life: civil wars, and wars between provinces or 
factions or kingdoms. 

An almost continuous trend has been the dominance of 
Authority and Order and Repression over the Individual and 
Liberty. And the supremacy of Personal Government, not the Rule 


A-9 



3766 


of Law. 

THE LIGHT SIDE 


But you also saw the light side: the faltering rise of the 
Individual, and of the Rule of I^w. You and most other Founding 
Fathers know that the Dark Ages witnessed another political event 
(an event whose vitality remains unimpaired in the late 20 th 
Century): the signing by England's King John in 1215, at the 
insistence of English barons, of the Magna Carta—the primary and 
most influential document in English constitutional history. 

In 1213 (while the Children's Crusade marched southward 
through France, and Genghis Khan marched through China), 
significant events had occurred in England: King John submitted 
to the Pope's authority, thereby making England and Ireland papal 
fiefs; and the English precursor to Parliament was formed. 

The original intention of the English barons, in compelling 
the King's signature, was limited and selfish: to obtain 
guaranties that despite papal influence their baronial privileges 
and feudal rights would not be violated. A startling concept 
injected was that the King could be compelled to recognize not 
only the barons' rights, but also certain rights and freedoms of 
English individuals and towns. The document's introduction 
proclaims: "TO ALL FREE MEN OF OUR KINGDOM, we have also granted, 

for us and our heirs for ever, all the liberties written out 
below...." 

The specific commands of the Magna Carta include, among 
others, that 25 barons shall be elected by the barons, and that 
"in the event of disagreement among" them "the verdict of the 
majority present shall have the same validity as a unanimous 
verdict"; that "any man" whose rights are transgressed by 
government may "claim immediate redress" to such barons "or in our 
absence from the Kingdom to the chief justice"; that no "corn or 
other movable goods" or "horses or carts" or "wood for our castle" 
are to be taken from "any free man, without his consent"; that "no 
sheriff...or other royal officials are to hold lawsuits that 
should be held by the royal justices"; that "no official shall 
place a man on trial upon his own unsupported statement, without 
producing credible witnesses to the truth of it"; that "no free 
man shall be seized or imprisoned...except by the lawful judgment 


A-10 



3767 


of his equals or by the laws of the land"; and that "to no one 
will we sell, to no one deny or delay right or justice."^/ 

Vou and other Founding Fathers know that some of these and 
other rights have been interpreted , in later years, to include not 
only the right to trial by jury, but also the right of habeas 
corpus ("produce the body" of a person who has unlawfully been 
imprisoned, sometimes at an unknown location), and the right of 
Parliament to levy taxes. 

As you learned, the Magna Carta was enormously important to 
the emergence of the Rule of Law: previously, and thereafter, 
monarchs were often deemed to possess "divine rights"; they did 
not recognize "legal rights", whether to property or otherwise. 
Instead, they arbitrarily bestowed or withheld favors, exacted 
tribute, and meted out punishment—the Rule of Men, not of the 
Law. Personal, not Impersonal, Government. There had been 
earlier compilations of laws, like Hammurabi's Code in 1700 B.C. 
and the Lawbooks of Emperor Justinian in the 6th Century (and 
there will be the code Napoleon in 1804, codifying French civil 
law), but these laws could, at a monarch's whim, be applied or 
ignored. 

The Magna Carta decreed, in effect, the supremacy of the 
law—that even a monarch must obey the law. In the short run, 

King John repudiated the document and was released by the Pope 
from its observance, triggering civil war. In the long run, the 
Magna Carta survived--and thrived, as the touchstone of the 
English constitutional system that is being reflected today, in 
modified form, in Philadelphia. 

A later milestone in English history, important to you and 
your colleagues, was the Glorious Revolution in England almost loo 
years ago, in 1688. The English deposed their Catholic King James 
II, and installed as joint rulers Queen Mary II (the daughter of 
James) and her Dutch husband, King William III. As a condition to 
their appointment, William and Mary were required to agree to the 
1689 English Bill of Rights. 


*/ These quotations are from the version issued by New Fork: Her 
Majesty's Stationery Office 1965 . translated by G.R.c. Davis, 
"with certain minor alterations by Sir Ivor Jennings." Another 
version, which sets forth the original Latin together with J. C. 
Holt's English translation, has been issued by Cambridge. At the 
University Press . 1965. 


A-ll 



3768 


— English, Jill gf Rights-1632 —«/ 

The first half of the English Bill of Rights describes twelve 
examples of the efforts of King James II "to subvert and extirpate 
the Protestant religion, and the laws and liberties of this 
kingdom", by suspending laws "and the execution of laws, without 
consent of Parliament", by quartering soldiers contrary to law, 
and, among others, by violating the freedom of elections and by 
" prosecutions in the Court of Kino's Bench, for matters and causes 

cognizable only in Parliament: and bv diverse other arbitrary and 

illegal courses ". 

(The emphasis is ours, to indicate that it is not novel to 
seek through a supreme court what could not be achieved through 
the legislature; and that the Iran-Contra affair has precedents.) 

Other charges leveled at King James included "excessive bail" 
and "excessive fines" and "illegal and cruel punishments", and by 
imposition of "fines and forfeitures before any conviction of 
judgment", etc. (To those who have read the Virginia Declaration 
of Rights—attached as Appendix D—or our Constitution, does this 
sound familiar?) 

After such catalogue of mischiefs, in the second half the 
"Lords Spiritual and Temporal, and Commons" (the members of 
Parliament) proclaimed that "for the vindicating and asserting 
their ancient rights and liberties": "1. That the pretended 
power of suspending of laws, or the execution of laws, by regal 
authority, without consent of parliament, is illegal" 

(reminiscent, is it not, of our "Personal Government" problems), 
and added 12 more laws, dealing with the matters of which they had 
complained in the first half, including trial by jury, "petition" 
to Kings, and "redress of all grievances"—many of the basic 
matters addressed in our original Constitution or our Bill of 
Rights. 

England thus completed what it had begun with the Magna 
Carta—to confirm the Rule of Law and the supremacy of Parliament 
over the monarchy, and thus to proclaim that the people, acting 
through Parliament, were to possess the primary governmental 
power. 

— Influence of England's Constitutional System — 

As Encyclopaedia Britannica explains, England's Constitution 
consists of (i) the legislative enactments of Parliament 
(including, by tradition, the Magna Carta), (ii) English (common- 


*/ Attached as Appendix C 


A-12 






3769 


law and equity) court decisions, (iii) customs, or conventions, 
like the resignation of the executive Government if it fails to 
secure a majority vote in Parliament on a major issue, and (iv) 
literary sources, such as textbooks of political theorists like 
the famous Albert Venn Dicey. The constitutional branches or 
components are the executive, the legislative, and the judicial 
(those three being the "government"), and the established Anglican 
Churches of England and Scotland. 

The Prime Minister (or chief executive) is selected by the 
Parliamentary majority, and the executive branch members 
(including most members of its cabinet) are actually a 
Parliamentary-majority committee (a mixing of the executive and 
legislative). The judiciary (together with the executive and 
legislature) historically came from the Curia Regis, a council of 
royalty and others assisting the King, and is inextricably 
entwined with "Law Lords" and others in Parliament. 

You and the other Founders have studied England's complex 
system, and have decided, for America's Constitution, to make at 
least six major departures from the mother-country's system: (i) 
there will be no monarch or royal titles (since monarchs and 
royalty are inconsistent with the democratic republic you are 
founding, and since their greed, machinations and caprice have led 
too often to wars), (ii) there will be no Government religion, 
either as part of Government or controlled by the Government, 

(iii) you will, astonishingly, provide for a separate judicial 
branch, (iv) you will draw upon an Englishman, John Locke, and a 
Frenchman, Montesquieu, in establishing a political system that 
separates the powers of branches of Government and includes 
numerous checks and balances between the branches, (v) you will 
provide for the people's direct (or virtually direct election, 
through electors) of the President, and (vi) you will establish a 
written Constitution, although it will be supplemented and 
complemented by principles and precedents established by England's 
"common law" and England's distinction between courts sitting "at 
law" or "in equity". 

The "common law" in England was simply law made by judges in 
specific cases, in the absence of controlling written laws. This 
"common law" has been largely adopted in America's colonies for 
such matters as the law of contracts (and will later be adopted by 
all states except Louisiana, which will adopt the "civil law" of 
the French). In America, however, as a general matter there is no 
federal common law, and each state has adopted its own version of 
the English common law but has augmented such law with its own 
"case-law" or judge-made law. (In later years, many states will 
adopt "uniform laws", such as the Uniform Commercial Code, to 
decrease diversity on matters in which relative uniformity is 
clearly preferable to diversity.) 


A-13 



3770 


The distinction between courts sitting "at law" or "in 
equity" is explicitly adopted by your colleagues in Philadelphia, 
when they state in Article III of the Constitution that "The 
judicial Power shall extend to all Cases, in Law and Equity, 
arising under this Constitution...." As American and English 
lawyers know, the distinction is between a court's sitting "at 
law", when there is clear written law or common-law that is 
applicable, or "in equity”, when principles of "equity" or 
fairness must be invoked because of the absence "at law" of an 
adequate remedy. 

You have adopted the English concept that individual liberty 
is secured by the rule of law, and is based upon the assumption 
that all governmental powers are based upon law. In studying 
Dicey, a legal theorist whose works (as mentioned above) are in 
fact a part of England's constitution, you and other lawyers among 
our forebears probably noted, and clearly adopted, two fundamental 
ideas: (i) there is, and should be, an absence of arbitrary power 

in government, and all government officials are subject to the 
dictates of the law and the courts, and (ii) the constitution is 
not the source , but the consequence . of individual rights. Both 
of these concepts are clearly reflected in the Declaration of 
Independence, the original Constitution now being drafted, and in 
the Bill of Rights that soon will be drafted. 

Perhaps you and your colleagues are wrong, in creating a 
written Constitution, and perhaps you, Madison and others, even 
Hamilton, should follow your instincts and resist more vigorously 
the pressures to incorporate specific rights in the ensuing Bill 
of Rights. (On balance, however, your collective decision 
probably will be wise: without a written Constitution enumerating 
at least most of our basic rights, perhaps today we would enjoy 
fewer rights than we do.) 

The above discussion of England's legal system and principles 
may demonstrate what your friends in Philadelphia mean (i) when 
they merely refer to "the judicial Power", as a power that 
primarily means the judicial power heretofore exercised in 
England, and consequently in the colonies, (ii) when they will 
soon refer, in the Bill of Rights, to "suits at common law", (iii) 
when they refer to Cases in Law " and Equity, arising under this 
Constitution rand! the Laws of the United States " (emphasis 
added), evidently indicating that the principle of "equity" should 
be applied to the Constitution and federal statutes, as well as to 
judge-made common-law cases, and (iv) when they decide that 
individual rights are so well established under our adopted 
English legal system, and under the Declaration of Independence 
you drafted, that it is unnecessary to enumerate them in the 
original Constitution. 


A—14 


3771 


— Renaissance, and Age of Enaliahtenment — 

The 16th through 18th Centuries raised from youth to maturity 
the political theories adopted by you and the other Founders in 
the late 18th Century. This period also gave rise, however, to 
the individual's spirit and vitality you see in America today (and 
that will raise America to eminence in the 20th Century). 

The preceding Renaissance was just that: a rebirth, in man's 
interest in humanism: in learning about man, nature, ideas, and 
the world. This was modern man's youth, in the 14th through 16th 
Centuries. Men like Columbus, Magellan, and Vasco de Gama 
explored the farthest reaches of the seas, using the newly- 
invented clock and navigational instruments like the compass. 

Men like Petrarch (who has been called the first and greatest 
humanist) studied anew the Greeks and the Romans, as did Erasmus, 
a Dutch Catholic priest who was one of the finest, most perceptive 
humanists. It was also the era of Sir Thomas More, the Catholic 
humanist in England who is called the "Man of all Seasons"; he was 
the man of conscience who lost his life, for not deferring to the 
wishes of Henry VIII. 

And the era of Montaigne, the one-time mayor of Bordeaux who 
became a recluse and issued essays whose wisdom, charm, and humor 
are considered exemplary (even in the 20th Century). And 
Rabelais, the Benedictine monk whose satires burlesqued the worst 
in society, but also were trenchant commentaries on philosophy and 
politics. 

Certain of this humanism occurred primarily within a 
religious setting, as with Erasmus, Sir Thomas More, and Rabelais, 
while other humanism prospered in a more secular setting, as with 
Petrarch and Montaigne. 

In art, Michelangelo, Raphael, Titian, and others changed man 
and nature from one-dimensional to three-dimensional, with 
perspective, depth, warmth, and color. Their works reflected in 
art what was occurring in life. Their patrons included the 
Church, in Rome, and the Medici in Florence, and Sforza in Milan. 

These same patrons supported Leonardo da Vinci, the 
artist—but also an inventor, engineer, and scientist (hydraulics, 
mechanics, anatomy, botany, and geology), and a musician and 
philosopher. The quintessential Renaissance Man, who said that 
"the natural desire of good men is knowledge". 


A-15 


3772 


The Renaissance was also the backdrop for the bold and 
ruthless Cesare Borgia, upon whose life the diplomat Machiavelli 
dispassionately drew for his classic. The Prince —one of the first 
truly objective portrayals of politicians. (We observe with 
interest today when politicans, both Republican and Democratic, 
have learned that the short-term advantages of the practices 
revealed in The Prince succumb, sooner or later, to the truth of 
Abraham Lincoln's "you can’t fool all of the people all the 
time.") 


So the Renaissance began an age in which medieval beliefs 
began to evolve into what you now accept as customary: modern, 
intellectual activity. Intellectuals all over Europe began to 
write, to explore, to communicate with each other. Sometimes 
under Church auspices and direction (religious humanism), but 
increasingly alone or in groups that gathered in private or public 
settings (secular humanism). 

You and some of your contemporaries are justly called 
"Renaissance Hen", with your spirit of inquiry and your varied 
interests and skills. In your century it is not only 
intellectuals who inquire and explore both nature and ideas. It 
has become common, and even fashionable. Even King George 111, 
against whom you directed the Declaration of Independence (and who 
will soon be upbraided, by his own people, for excessive "personal 
government"), is fond of botany. (Today, this spirit is 
exemplified in our phrases: "See for yourself", "Look around 
you", "Hake up your own mind", "Take a good look".) 

You know that the Renaissance overlapped with, and evolved 
into, the 16th and 17th Centuries' Reformation. This was begun by 
Catholics, but completed by Protestants—after Hartin Luther in 
1517 nailed his theses on the Wittenberg church-door, proclaiming 
man's personal responsibility for his salvation, and man's 
religious justification by faith alone. 

In 1453, Gutenberg had printed a Bible (later to be found in 
the library of Louis XIV's adviser, Cardinal Hazarin, and hence 
called the "Hazarin" Bible), but Luther translated the Bible into 
German. The printing press soon assumed astonishing religious, 
secular, and political importance. Now the Bible could be read by 
any person and thus serve as the direct basis for such person's 
faith, without church rituals or intercession. 

The printing press permitted dissemination of information. 
Books and newspapers could contain not only heresy, but also could 
report on anything else that men and women thought, said, or 
did. Had the printing press not been invented and widely used 
before your compatriots began drafting, those men might now be 
drafting a much different Constitution, studded with fewer novel 


A—16 



3773 


and even revolutionary ideas. 

you say that given a choice between "a government without 
newspapers, or newspapers without a government, I should not 
hesitate a moment to prefer the latter." 

you know that freedom of speech, and of the printing press, 
is still a novelty. A mere century earlier, England still imposed 
through licensing the prior censorship of publications, and made 
criticism of government a felony. England also restricted 
reporting on parliamentary debates until the 1770's, the decade in 
which you wrote the Declaration of Independence. you and most of 
the other Founders are determined to end such restrictions: 

America shall have complete freedom of speech, and of the press. 

As man's quest for knowledge of science and nature expanded 
together with his reflections on philosophy, the influence of the 
Church's theology and dogma lessened—and the Age of Science, of 
Reason, and of Enlightenment flourished. Previously, Galileo had 
become a physicist, mathematician, and astronomer, developing 
theories on nature and natural laws and devising mathematical 
formulations on physics. Then Newton's Princinla mathematica was 
published, in 1687, and examined astronomy and the movements not 
only in the skies but alBO in nature, on the seas and elsewhere on 
earth. It dominates scientific inquiry today, by you and other 
Americans (and will dominate such inquiry, both in America and 
Europe, for at least one more century). And other scientists 
inquired, experimented, formulated, and invented. 

As the scientists explored new subjects, Voltaire, Hume, 
Rousseau, Kant, Montesquieu and others pressed further in thinking 
and writing about philosophy and political theory, and in 
employing reason rather than only faith. Only 36 years ago, in 
1751, Diderot began to publish a massive undertaking: an 
"encyclopedia" that attempted to portray much of man's total 
knowledge and skills. It includes extensive and precisely 
detailed, sequential drawings on anatomy and medical instruments, 
that already are being used by physicians to improve their 
skills. And similar drawings on weaponry and military tactics, 
and sports, trades, industry, animals. A few trade guilds are 
incensed at this divulging of their trades' secrets. 

But Modern Man will not be stopped, and has fully 
emerged--and nowhere so boldly, or with so much determination and 
enterprise and independence, as in America. This secular humanism 
is America's birthright, and it is being memorialized and given a 
foundation, for now and posterity, in Philadelphia today. And it 
will be the touchstone, implemented by individuals acting 
independently, in the explosive growth and development of 
America. An America in which some will say "Now hear this!" and 
"Listen up!", but in which most will say "Think for yourself", "Be 
your own man", "Show roe!" and "Prove it!", but also "Don't tread 
on me" and "Give me liberty or give me death". And, perhaps most 
important (with all of its political and civil implications), "Vou 
can be anything you want to be." 


A-17 



3774 


APPENDIX B, TO STATEMENT BY 
LAWYERS FOR THE JUDICIARY 

Responses to Pro-Bork Arguments 


We discussed in the Statement and Appendix A the major 
arguments made by Judge Boric's proponents, with the principal 
exception of the case-by-case analysis of his court opinions, a 
subject for inexhaustible debate— as already manifested at the 
Senate hearings. 

We restrict ourselves here to other arguments of Judge 
Bork's supporters, and to amplification of two or three matters 
discussed previously. 

1. Judge Bork "has chan ged" ,j ?or w in gha n ga^. 

After watching the Senate hearings to date,we conclude that 
Americans have heard most of what may be said on this subject. 

For further edification, Americans may wish to study the many 
Supreme Court books by John P. Frank, and Laurence Tribe's God 
Save This Honorable Court (especially the chapter entitled "The 
Myth of the Surprised President"). 

Then, perhaps reread our Statement's section entitled "A 
Major Concern", review the Senate hearings' testimony on Judge 
Bork's extra-judicial comments that extend even to early in 
1987. Then determine how much Judge Bork has changed, and how 
assiduously this Administration has tried to ensure that the 
President will not be surprised by Judge Bork's future decisions. 

2. Judge Bork will demonstrate "judicial restraint" . 

This, too, has been discussed in the Statement and Appendix 
A. We sadly conclude that this argument, if successful, will 
constitute yet another triumph of Madison Avenue's and 
Hollywood's skills, over common-sense and straight-talk. 

For those who question our Statement's recitation that the 
Supreme Court until World War II was largely conservative, and 
largely activist, and instrumental through its activism in 
expanding the national government's powers, we suggest that they 
test the accuracy of our remarks by Consulting their lawyer 
friends or any second-year law student, of whatever political 
persuasion. 

Further light may be cast on the question of which type of 
Court has shown judicial restraiint traditionally, and still today 
(except for the post-war liberal court through the 1960's and 


B—1 



3775 


part of the 1970's), by two quotations from Wax Lerner's recent 
Hew Republic article (in which, we should stress, Lerner 
advocates confirmation of Judge Bork): 

"The fact is that there is now an "activist" judicial 
culture that is mostly liberal (in the '20s and early 
'30s the activists were conservatives) and a "judicial 
restraint" culture that is mostly conservative (when it 
was once liberal). Bork, at least in rhetoric, 
champions a restraint philosophy that will be 
politically "neutral."" 

And: "A conservative activist Court ruled imperially to 
freeze the status quo under Republican presidents from 
the Civil War to the New Deal." 

Americans should ponder, very seriously, just how much of 
the earlier post-war, liberal judicial "activism" they want to 
reverse. This activism dealt primarily with civil rights and the 
Bill of Rights. 

At some point we will have to resolve, candidly and finally, 
the ongoing controversy over blacks. Can we ship them all back 
to the South, and thereby reduce the racial friction and expense 
engendered in the North? What about that line that those English 
surveyors drew (a decade before the Declaration of Independence) 
as a southern boundary for Pennsylvania: can we build a high 
wall along Charles Mason's and Jeremiah Dixon's line, and extend 
it west around the Great Lakes States (and let Iowa and Missouri 
decide which side they want to be on), and build another wall 
along the eastern borders of the Pacific-Coast States? (But let 
us at least invite Virginia to join us. We need some of those 
Southern Gentlemen who gave us most of our rights, and who gave 
us four of our first six Presidents.) Then we can again 
establish two governments and two military forces, and prohibit 
Northerners from spending tourist dollars in the South, and 
establish separate immigration policies (the North's will have to 
be considered more carefully, since the vast majority of 
immigrants have always come to the North, for its industry and 
prosperity). Is this what Americans want? 

In short, let us fish or cut bait. Apart from the right- 
wing extremists responsible for the anti-black (equal 
representation and affirmative action) portions of the 
President's social agenda, the Silent Majority seems to have 
approved school desegregation, and equal voting rights, and equal 
job-opportunities (if not all affirmative action programs) for 
blacks. 

Yes, the school desegregation decision was made by the Court 


B-2 



3776 


(led by Chief Justice Warren, who initially was sometimes 
criticised as being too conservative), but it was enforced by 
President Eisenhower and most subsequent Presidents. 

Military desegregation was initiated not by the Court but by 
executive actions of Presidents Truman and Eisenhower; and the 
major civil-rights legislation was spearheaded by President 
Johnson and certain members of Congress (and duly filibustered by 
certain current, ardent supporters of Judge Bork). Does anybody 
regard Presidents Truman, Eisenhower, and Johnson as soft-headed 
or "egg-heads" — or were they hard-headed pragmatists motivated 
by a sense that what they were doing was not only "fair” and 
"right", but also smart — that these controversial acts best 
served America's long-term interests and, for about the same 
reasons, would be politically acceptable to the majority of 
Americans. 

If we want to roll back civil-rights advances, we had best 
be thorough: right now, every adult black has a vote equal to 
ours, and those votes can hurt he if blacks start to exhibit the 
same prejudice we have shown to them. 

Chicago's retiring Police Superintendent Rice (who ensured 
that whites continued to enjoy as much police protection as in 
earlier administrations) said recently, after studying Judge 
Bork's past rulings: "if we had nine Borks on the Supreme Court, 
I'll have to find one good white man to buy me". 

How much "liberalism" do people want to roll back? Social 
Security? Medicare and Medicaid (that the American Medical 
Association resisted for over four decades)? FDIC insurance on 
their bank accounts? 

And the Court's liberalism in the 1960's, on the Bill of 
Rights, often involved criminal matters — and, sometimes, 
deplorable persons. Nonetheless, as stressed at the Senate 
hearings by another one of those Southern Gentlemen, North 
Carolina Professor William Leuchtenberg, the Court's decisions in 
the 1960's (and partly earlier) established and confirmed, one by 
one, that the Bill of Rights and other Constitutional protection 
we have against federal government action (on freedom of the 
press, and of religion, and against self-incrimination, and the 
right to counsel, etc.) is applicable, through the 14th 
Amendment, to state action. 

Do Americans trust state action more than federal action 
(expecially if state legislatures are given much more latitude 
pursuant to Judge Bork's majoritarianism theory)? 

Max Lerner, although he supports Judge Bork, has some 


B—3 



3777 


thoughts on those roll-backs. His Hew Republic article states 
also that "the necessary social upheavals of a nation are often 
tricky and always hard-won, but once in place, they are not 
easily dislodged", and "Mostly the "social issues" have run their 
liberal course. Their expansion may be stopped, but a steep 
roll-back would be too divisive." 

As to economic regulation, Americans had best complain to 
Congress and their state legislatures. Since about 1937 the 
Court (both when liberal and when conservative) has in fact 
demonstrated judicial restraint and permitted Congress and state 
legislatures to impose increasing regulation. In this area, the 
Court should not be made a scapegoat. 

3. Judge Bork will be "touch on crime ". 

On pages 55 and 56 of our Statement, we discussed the "law 
and order” demagogues and asked whether the demagogues have in 
fact reduced crime. But knee-jerk reactions to the phrase 
continue unabated, as do the demagogues' comments: readers may 
remember the newspapers' reports in late August about the 
law-enforcement officials gathered by the President in Los 
Angeles, to support Judge Bork's nomination. Those officials 
included, among others, Illinois Governor Thompson (a former 
United States Attorney), and Attorney General Meese. 

we somehow find more persuasive, realistic, and candid, the 
remarks (quoted in the September 5, 1987 Chicago Tribune ^ of 
Chicago's retiring Police Superintendent Rice — a man who 
diligently enforced the law in a city that we believe has every 
race, creed, and color, and every ethnic group, and every crime, 
that can be found in America: 

"When you say hard line, any time anyone espouses 
circumvention of the Constitution and suspension of the 
rights of individuals, whether it's the victim or the 
offender, you have got to be careful of that guy." 

"You know Hitler was right-wing when it came to crime. 

He had a Gestapo that had carte blanche over the rights 
of people. Is that what we want? This country was 
founded on democratic principles, and it is incumbent 
that we have to be careful that those rights are not 
infringed upon by well-meaning people." 

"Law and order is all right, but you must have justice 
with law and order. Respect my rights, and I'll respect 
yours." 


B-4 



3778 


4. Judge Bork's opponents are being "political 11 and 
"ideological ". 

Madison Avenue and Hollywood again. (And see "Nonsense and 
Sense" beginning on page 3 of the Statement.) Granted, in the 
Senate there are political motivations on both sides of the 
aisle, just as there were in the Constitutional Convention. But 
this argument should be deemed only an opening salvo, not a 
conclusive bombardment. The real question is whose substantive 
arguments make sense. 

This argument is also patently offensive and untrue, when 
directed at the black and women's-rights opponents of Judge Bork. 

5. The Supreme Court need not be "balanced ". 

We conceded this, with reservations, on page 6 of our 
Statement. But as we listened to two former Presidents of the 
American Bar Association testify against Judge Bork at the 
hearings, we wondered if we were too moderate in our 
reservations, we found persuasive the comments of one such 
ex-President, Mr. Chesterfield Smith. 

Mr. Smith testified in effect that as a trial lawyer, he is 
happy with two conservatives like Justices Scalia and Rehnquist 
at one end, and two liberals like Justices Marshall and Brennan 
at the other end, but he wants "somebody in the middle I can talk 
to". 


6. The President is doing nothing more than what President 
Roosevelt sought in the 1937 court-packing . 

The President is openly and candidly seeking to accomplish 
through Supreme Court appointments what was denied him by 
Congress. 

President Roosevelt enjoyed huge majorities in Congress (331 
Democrats to 89 Republicans in the House, and 76 to 16 in the 
Senate, after the 1936 elections). This Congress agreed with the 
President, hence the conservative Court was thwarting the will of 
Congress as well as the President. 

President Roosevelt's proposal was to add one new justice 
(to a maximum of six) for each present Justice who was age 70 or 
older. And it was this Democratic Congress that nevertheless 
rebuffed the President's plan. 

As is known, the Court then began to be less conservatively 
activist, and began upholding such laws as state minimum-wage 
laws for women, and the Social Security Act. 


B-5 



3779 


A historical footnote: The number of Justices is 
established by Congress, not the Constitution. 

In 1789, Congress set the number at six. The conservative 
Federalists reduced the number to five, to delay the time at 
which the liberal Jefferson's appointments might become 
influential. Then in 1802, back to six. Thereafter, a new 
Justice was added for each new federal circuit court. Then seven 
(1807), nine (1837), a proposed seven (1866), then finally nine 
(1869) . That history might be kept in mind, not only for 1937 
and 1987, but for the future. This power is in the hands of 
Congress. 

7. Miscellaneous other arguments . 

These run the gamut. Often they are nothing more, or less, 
than distortions of words or principles. In the Statement we 
discussed the fact that Judge Bork seems to conclude that since 
individuals' rights are not "absolute" (with which we agree), 
they can be trivialized and vastly reduced. 

And the Solicitor General's "political deputy" (whose 
school-prayer arguments were discussed on pages 27 and 28 of the 
Statement), in referring to the relationship between the 
Solicitor General's office and the Attorney General, said "It has 
never been real independence". (Emphasis his, not ours.) Again, 
we agree, but the consequences of that kind of rationalizing were 
described on pages 35-38 of the Statement. 

We shall give the last word, on these and similar arguments, 
to Abraham Lincoln. Most of the first will be recognized by many 
Americans, but its opening, and the second quotation, may be less 
well-known: 

"If you once forfeit the confidence of your fellow 
citizens, you can never regain their respect and 
esteem. It is true that you may fool all the people 
some of the time; you can even fool some of the people 
all the time; but you can't fool all of the people all 
the time." 

"If there ever could be a proper time for mere catch 
arguments, that time surely is not now. In times like 
the present, men should utter nothing for which they 
would not willingly be responsible through time and in 
eternity." 


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3780 


APPENDIX C, TO STATEMENT BV 
LAWYERS FOR THE JUDICIAR* 


English Bill of Rights 
(1689) 

Whereas the Lords Spiritual and Temporal, and Commons, 
assembled at Westminster, lawfully, fully, and freely 
representing all the estates of the people of this realm, did, 
upon the thirteenth day of February, in the year of our Lord one 
thousand six hundred eighty-eight, present unto their Majesties, 
then called and known by the names and style of William and Mary, 
Prince and Princess of Orange, being present in their proper 
persons, a certain declaration in writing, made by the said Lords 
and Commons, in the words following: 

1. By assuming and exercising a power of dispensing with and 
suspending of laws, and the execution of laws, without consent of 
Parliament. 

2. By committing and prosecuting divers worthy prelates for 
humbly petitioning to be excused from concurring to the same 
assumed power. 

3. By issuing and causing to be executed a commission under 
the Great Seal for erecting a court, called the Court of 
Commissioners for Ecclesiastical Causes. 

4. By levying money for and to the use of the Crown, by 
pretence of prerogative, for other time, and in other manner than 
the same was granted by Parliament. 

5. By raising and keeping a standing army within this 
kingdom in time of peace, without consent of Parliament, and 
quartering soldiers contrary to law. 

6. By causing several good subjects, being Protestants, to 
be disarmed, at the same time when Papists were both armed and 
employed contrary to law. 

7. By violating the freedom of election of members to serve 
in Parliament. 

8. By prosecutions in the Court of King's Bench, for matters 
and causes cognizable only in Parliament; and by diverse other 
arbitrary and illegal courses. 


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3781 


9. And whereas of late years, partial, corrupt, and 
unqualified persons have been returned and served on juries in 
trials, and particularly divers jurors in trials for high 
treason, which were not freeholders. 

10. And excessive bail hath been required of persons 
committed in criminal cases, to elude the benefit of the laws 
made for the liberty of the subject. 

11. And excessive fines have been imposed? and illegal and 
cruel punishments inflicted. 

12. And several grants and promises made of fines and 
forfeitures, before any conviction of judgment against the 
persons upon whom the same were to be levied. 

All of which are utterly and directly contrary to the known 
laws and statutes, and freedom of this realm. 

And whereas the said late King James II has abdicated the 
government, and the throne being thereby vacant his Highness the 
Prince of Orange (whom it hath pleased Almighty God to make the 
glorious instrument of delivering this kingdom from popery and 
arbitrary power) did (by the advice of the Lords Spiritual and 
Temporal, and divers principal persons of the Commons) cause 
letters to be written to the Lords Spiritual and Temporal, being 
Protestants, and other letters to the several counties, cities, 
universities, boroughs, and Cinque Ports, for the choosing of 
such persons as represent them, as were of right to be sent to 
Parliament, to meet and sit at Westminster upon the two-and- 
twentieth day of January, in this year one thousand six hundred 
eighty and eight, in order to such an establishment, as that 
their religion, laws, and liberties might not again be in danger 
of being subverted; upon which letters, elections have been 
accordingly made. 

And thereupon the said Lords Spiritual and Temporal, and 
Commons, pursuant to their respective letters and elections, 
being now assembled in a full and free representation of this 
nation, taking into their most serious consideration the best 
means for attaining the ends aforesaid, do in the first place (as 
their ancestors in like case have usually done), for the 
vindicating and asserting their ancient rights and liberties, 
declare: 

1. That the pretended power of suspending of laws, or the 
execution of laws, by regal authority, without consent of 
parliament, is illegal. 


C-2 



3782 


2. That the pretended power of dispensing with laws, or the 
execution of laws, by regal authority, as it hath been assumed 
and exercised of late, is illegal. 

3. That the commission for erecting the late Court of 
Commissioners for Ecclesiastical Causes, and all others 
commissions and courts of like nature, are illegal and 
pernicious. 

4. That levying money for or to the use of the Crown, by 
pretence of prerogative, without grant of parliament, for longer 
time or in other manner than the same is or shall be granted, is 
illegal. 


5. That it is the right of the subject to petition the king, 
and all commandments and prosecutions for such petitioning are 
illegal. 


6. That the raising or keeping a standing army within the 
kingdom in time of peace, unless it be with consent of 
parliament, is against law. 

7. That the subjects which are Protestants may have arms for 
their defence suitable to their conditions, and as allowed by 
law. 


8. That election of members of parliament ought to be free. 

9. That the freedom of speech, and debates of proceedings in 
parliament, ought not to be impeached or questioned in any court 
or place out of parliament. 

10. That excessive bail ought not to be required, nor 
excessive fines imposed; nor cruel and unusual punishment 
inflicted. 

11. That jurors ought to be duly impanelled and returned, 
and jurors which pass upon men in trials for high treason ought 
to be freeholders. 

12. That all grants and promises of fine and forfeitures of 
particular persons before conviction are illegal and void. 

13. And that for redress of all grievances, and for the 
amending, strengthening and preserving of the laws, parliaments 
ought to be held frequently. 

And they do claim, demand, and insist upon all and singular 
the premises, as their undoubted rights and liberties; and that 
no declarations, judgments, doings or proceedings, to the 
prejudice of the people in any of the said premises, ought in any 
wise to be drawn hereafter into consequence of example. 


C-3 



3783 


APPENDIX D, TO STATEMENT BY 
LAWYERS FOR THE JUDICIARY 


Virginia Declaration of Rights 
(1776) 


A declaration of rights made by the representatives of the 
good people of Virginia, assembled in full and free convention; 
which rights do pertain to them and their posterity, as the basis 
and foundation of government: 

Section 1. That all men are by nature equally free and 
independent and have certain inherent rights, of which, when they 
enter into a state of society, they cannot, by any compact, 
deprive or divest their posterity; namely, the enjoyment of life 
and liberty, with the means of acquiring and possessing property, 
and pursuing and obtaining happiness and safety. 

Section 2 . That all power is vested in,-and consequently 
derived from, the people; that magistrates are their trustees and 
servants and at all times amenable to them. 

Section 3. That government is, or ought to be, instituted 
for the common benefit, protection, and security of the people, 
nation, or community; of all the various modes and forms of 
government, that is best which is capable of producing the 
greatest degree of happiness and safety and is most effectually 
secured against the danger of maladministration; and that, when 
any government shall be found inadequate or contrary to these 
purposes, a majority of the community hath an indubitable, 
inalienable, and indefeasible right to reform, alter, or abolish 
it, in such manner as shall be judged most conducive to the 
public weal. 

Section 4. That no man, or set of men, are entitled to 
exclusive or separate emoluments or privileges from the 
community, but in consideration of public services; which, not 
being descendible, neither ought the offices of magistrate, 
legislator, or judge to be hereditary. 

Section 5. That the legislative and executive powers of the 
state should be separate and distinct from the judiciary; and 
that the members of the two first may be restrained from 
oppression, by feeling and participating the burdens of the 
people, they should, at fixed periods, be reduced to a private 
station, return into that body from which they were originally 
taken, and the vacancies be supplied by frequent, certain, and 


D-l 



3784 


regular elections, in which all, or any part, of the former 
members, to be again eligible, or ineligible, as the laws shall 
direct. 

Section 6. That elections of members to serve as 
representatives of the people, in assembly, ought to be free? and 
that all men, having sufficient evidence of permanent common 
interest with, and attachment to, the community, have the right 
of suffrage and cannot be taxed or deprived of their property for 
public uses without their own consent, or that of their 
representatives so elected, nor bound by any law to which they 
have not, in like manner, assented for the public good. 

Section 7. That all power of suspending laws, or the 
execution of laws, by any authority, without consent of the 
representatives of the people, is injurious to their rights and 
ought not to be exercised. 

Section 8. That in all capital or criminal prosecutions a 
man hath a right to demand the cause and nature of his 
accusation, to be confronted with the accusers and witnesses, to 
call for evidence in his favor, and to a speedy trial by an 
impartial jury of twelve men of his vicinage,"without whose 
unanimous consent he cannot be found guilty; nor can he be 
compelled to give evidence against himself; that no man be 
deprived of his liberty, except Dy the law of the land or the 
judgment of his peers. 

Section 9. That excessive bail ought not to be required, 
nor excessive fines imposed, nor cruel and unusual punishments 
inflicted. 

Section 10. That general warrants, whereby an officer or 
messenger may be commanded to search suspected places without 
evidence of a fact committed, or to seize any person or persons 
not named, or whose offense is not particularly described and 
supported by evidence, are grievous and oppressive and ought not 
to be granted. 

Section 11. That in controversies respecting property, and 
in suits between man and man, the ancient trial by jury is 
preferable to any other and ought to be held sacred. 

Section 12. That the freedom of the press is one of the 
great bulwarks of liberty and can never be restrained but by 
despotic governments. 

Section 13. That a well-regulated militia, composed of the 
body of the people, trained to arms, is the proper, natural and 
safe defense of a free state; that standing armies, in time of 


D—2 



3785 


peace, should be avoided as dangerous to liberty? and that in all 
cases the military should be under strict subordination to, and 
governed by, the civil power. 

Section 14. That the people have a right to uniform 
government; and, therefore, that no government separate from or 
independent of the government of Virginia ought to be erected or 
established within the limits thereof. 

Section IS. That no free government, or the blessings of 
liberty, can be preserved to any people, but by a firm adherence 
to justice, moderation, temperance, frugality, and virtue, and by 
frequent recurrence to fundamental principles. 

Section 16. That religion, or the duty which we owe to our 
Creator, and the manner of discharging it, can be directed only 
by reason and conviction, not by force or violence; and therefore 
all men are equally entitled to the free exercise of religion, 
according to the dictates of conscience; and that it is the 
mutual duty of all to practice Christian forbearance, love, and 
charity toward each other. 


D—3 





3786 


The Chairman. Thank you, Dean, for a very concise and 
thoughtful statement. 

My colleague from South Carolina, Senator Stennis? Senator 
Thurmond? I was wondering how Senator Stennis is going to vote. 

Senator Thurmond. Mr. Clay, I noticed you say you have about 
700 lawyers in this group? 

Mr. dtAY. Yes, Senator. 

Senator Thurmond. How many lawyers are there in the State of 
Illinois? 

Mr. Clay. I don’t know the exact number. Senator. I would guess 
most people think there are too many. 

Senator Thurmond. Well, aren’t there about 50,000? 

Mr. Clay. Oh, there may be. There may be. 

Senator Thurmond. Well, don’t you have some idea, you are a 
member of the bar, aren’t you? 

Mr. Clay. Fifty thousand is probably a good figure. 

Senator Thurmond. And you have 700 opposed to him. 

Mr. Clay. That is correct. 

Senator Thurmond. So there could be 49,300 for him, then? 

Mr. Clay. No, I wouldn’t reach that conclusion, Senator. I am 
not aware of any group, as a matter of fact, of lawyers that has 
been organized to support him in Illinois. 

Senator Thurmond. As a matter of fact, does your group come 
mainly from the Chicago Council of Lawyers? 

Mr. Clay. No, I wouldn't say that. 

Senator Thurmond. Well, that is the heart of it, though, isn’t it? 

Mr. Clay. No, I wouldn’t say that it is the heart of it. 

Senator Thurmond. Isn’t that the heart of your group, a group of 
liberal lawyers in Chicago? 

Mr. Clay. It is a cross section, as I have said, Senator, and we 
haven’t identified people actually. We know we have some Republi¬ 
can lawyers. 

Senator Thurmond. Do you know Judge Bork? 

Mr. Clay. I am sorry? 

Senator Thurmond. Do you know Judge Bork? Do you know 
Judge Bork? 

Mr. Clay. No. 

Senator Thurmond. You don’t know him. 

The Chairman. Do you know? Are you personally acquainted 
with Judge Bork? 

Mr. Clay. No, I don't know Judge Bork. I don’t know Judge 
Bork. 

Senator Thurmond. Well, Chief Justice Burger knows him. Chief 
Justice Burger says he is in the mainstream, and he says these 
people who call him an extremist are in error. And if Judge Bork 
is an extremist, he is an extremist. 

Well, you wouldn’t call Chief Justice Burger an extremist, would 
you? 

Mr. Clay. No, I never have. 

Senator Thurmond. Do you know Mr. Lloyd Cutler? 

Mr. Clay. I just know him by reputation, Senator. 

Senator Thurmond. Doesn’t he have a good reputation? 

Mr. Clay. An excellent reputation. 

Senator Thurmond. He is a liberal Democrat. 



3787 


Mr. Clay. Well, he is at least a Democrat. 

Senator Thurmond. Well, he holds Judge Bork in high esteem, 
and came here and endorsed him very highly. 

Do you know the Governor of your State, Governor Thompson? 

Mr. Clay. I don’t know him personally, Senator. 

Senator Thurmond. Well, he came here and endorsed him, very 
highly. And I could go on and on, very prominent people. Seven 
deans of law schools came here yesterday and endorsed him highly. 
Four more very prominent lawyers and antitrust experts came 
here and endorsed him highly. 

I don’t know what you all have against this man. Is this an 
imagination, or a figment? Have you been misinformed, or have 
you really become acquainted thoroughly with his work on the cir¬ 
cuit bench? 

He has written over 150 decisions. He has participated in over 
400 decisions. None of them have been reversed by the Supreme 
Court, so he must be in the mainstream. He must be a fairly good 
man anyway, if Chief Justice Burger and Lloyd Cutler and all 
these people have endorsed him who have. 

No questions. 

The Chairman. Dean, do you know Judge Bork? 

Mr. Roberts. Yes, Senator, I do. I was a student of his and I was 
also a colleague of his on the Yale faculty when I was associate 
dean of the law school. 

The Chairman. I see. 

Senator Thurmond. He didn’t give you a low mark, did he? 

Mr. Roberts. No, sir, he didn’t. I think it was a “B,” Senator. I 
can’t remember exactly. 

The Chairman. Well, you better be able to remember exactly. I 
know from experience. You better get it precisely right. [Laughter.] 

Mr. Roberts. I neglected to check it before my appearance. 

The Chairman. It takes a while to get your transcript I know. 

Senator Specter? Oh, I beg your pardon. I am sorry. I should go 
to this side. Do any of my colleagues on this side have a question? 
Senator, do you wish to go first? Senator Simon? I am sorry. 

Senator Heflin. No, let him. 

The Chairman. I beg your pardon. 

Senator Simon, from Illinois? 

Senator Simon. Yes, Mr. Chairman. First, if I may say to my dis¬ 
tinguished colleague from South Carolina here—if I may have Sen¬ 
ator Thurmond’s attention for just 1 minute. 

Senator Heflin. He may be President, you know. You better 
listen to him. 

Senator Simon. If I may say to my distinguished colleague from 
South Carolina, the Chicago Council of Lawyers so far has en¬ 
dorsed every nominee that the Reagan Administration has brought 
up, with the exception of two, Judge Bork and a nominee from the 
State of Indiana. In all other cases they have supported the nomi¬ 
nation. I just thought I would clarify that for the record. 

Senator Thurmond. That is a pretty good record. You could have 
had 100 percent if you had endorsed this man, wouldn’t you? 

Senator Simon. If I may ask the three of you this question. There 
has been a substantial shift of position from what Judge Bork has 
written in his articles to what he has testified here, and there are 




3788 


those who say that shift of position indicates that he really is in 
the mainstream and that we are simply going back to positions 
that were once held by someone but are no longer valid. 

What is your response to that? 

Mr. Roberts. Senator, I think you have to talk about specific 
issues, but in large measure I think he has not changed his under¬ 
lying views. I think that you have to look at each issue. 

On the 14th amendment issue, for example, on the question of 
whether gender is included in the ambit of the 14th amendment, I 
think Judge Bork’s response was an unsatisfactory one from a law¬ 
yer’s point of view. He argued that we should look at the basis for 
the legislative action and judge it to see whether it was reasonable. 

Well, we know, looking at the Supreme Court jurisprudence over 
this whole period of years, that that is not a very good test. It is 
not a test that knocks out very many State laws, so it does not pro¬ 
vide protection for minorities under the 14th amendment, 

I don’t think his view changed; and, if that is now his view, it is 
not a view that would allow the constitutional protection to be 
spread over very many people. 

As to his controversial views about dissenting speech and the dis¬ 
cussion about Hess and Brandenburg that went on during the hear¬ 
ings, there it seemed to me his views were confusing. I am not sure 
really what he believes about them except that he still seems to 
maintain that the underlying theory of those cases is invalid—that 
is, that we should protect subversive speech as an important value 
under the first amendment. I think he still holds that view. 

Just because he believes that Brandenburg is a precedent that he 
would follow does not mean that he accepts the underlying theory, 
and, as you know, it is quite often possible for a judge to say, well, 
I accept this as binding, but this new case is different on its facts 
and therefore isn’t controlling. 

Senator Simon. I have no further questions. I just want to thank 
the witnesses, particularly since they are from my home State. I 
appreciate that. 

The Chairman. Thank you. 

Senator Specter? 

Senator Specter. Thank you, Mr. Chairman. 

The statement which you have submitted refers to judicial activ¬ 
ism on the part of Judge Bork in Dronenburg v. Zech and Oilman 
v. Evans. Are you critical of him for his decisions in those cases? 

Mr. Clay. The point that was made in the statement I think was 
merely to show that Judge Bork himself has been criticized by very 
responsible fellow judges of the Courts of Appeal—in the Oilman 
case, that was by Judge Scalia—as lacking judicial restraint. In 
Dronenburg there were four judges who, in their special opinion, 
accused Judge Bork of using the occasion of his opinion for what 
they called a general spring housecleaning of constitutional law 
issues, and then they said “judicial restraint begins at home.” 

I guess partly the point being made here is that sometimes judi¬ 
cial restraint seems to be rather subjective. 

Senator Specter. Well, Judge Bork has written extensively that 
he favors judicial activism if it is judicial activism in support of the 
constitutional principle. 



3789 


But coming back to the Oilman case, that case has been cited 
generally for a proposition that Judge Bork was on the right track 
in expanding first amendment freedoms to give protection to the 
Evans and Novak comments about Professor Oilman, turning on 
an issue of fact or opinion but was a good opinion, progressive or 
expansive of first amendment rights. 

Would you disagree with that, Mr. Clay? 

Mr. Clay. No, I wouldn’t. The point that Judge Scalia made was 
that it was not necessary for Judge Bork to concur specially to 
reach the result in the Oilman, case which was a desirable result. 
And he merely pointed out that it was expanding the whole con¬ 
cept. 

Mr. Roberts. Senator, I think what disturbs some people who try 
to make sense of all this is that it is difficult to understand why 
Judge Bork can take a rather expansive view in the libel case—I 
think that was a good opinion and the case was correctly decided— 
but is so reluctant to take a more expansive view in the privacy 
cases. It is difficult for me at least to understand a principled dis¬ 
tinction between the process in those cases. I would have thought 
that you should come out in favor of Griswold and in favor of the 
position in Oilman, but he does not. So I think that is the confus¬ 
ing part. 

Senator Specter. Well, in Oilman, Judge Bork articulates an in¬ 
terpretation of a first amendment value. He starts with a specifi¬ 
cally articulated right in the Constitution. On Griswold, as we well 
know, especially everybody in this room because Griswold is the 
most discussed case in America today, he comes to the conclusion 
that there was no sound judicial basis for articulating the right of 
privacy and a line of criticism which has been shared by many 
people in terms of judicial construction. That the craftsmanship 
and the formulation of the right did not have a sound judicial un¬ 
derpinning. 

Mr. Roberts, do you think—Dean Roberts, do you think that 
Griswold did have a sound judicial underpinning? 

Mr. Roberts. Yes, I do. In fact, I think most of the academic crit¬ 
icism of Griswold, and even the judicial criticism, has really not 
gone to the core issue that there is an important overriding privacy 
value in the Constitution. And it doesn’t start with Griswold, it 
goes way back to the early part of the century. It was building over 
a long period of time. 

The word does not appear in the Constitution, but neither does 
the distinction between fact and opinion that Judge Bork makes so 
much of in the Oilman case. In that case he expanded the view 
that everyone had of the importance of fact versus opinion in libel 
jurisprudence. 

Senator Specter. Well, I don’t mean to suggest that I am opposed 
to the conclusion of Griswold, but Griswold has been criticized very 
extensively by some very learned scholars. Not in terms of the con¬ 
clusion that there is a right of privacy, but the reasoning and the 
deductive process and the craftsmanship of the case. 

Well, these are complex subjects and I wish we could talk about 
longer, but we hope to finish these hearings today, and my time is 
up. 

Thank you very much, Mr. Chairman. 




3790 


Senator Heflin. I suppose now I am chairing this, but let me ask 
you this, as I deferred to Senator Simon. It appears that we now 
have people that really go through a substantial period of what 
could be called campaigning for the Supreme Court. I am not sure 
whether that is good or bad, but anyway it appears to be. I think 
people are saying that Laurence Tribe is, in effect, a candidate and 
he is going through a campaign appealing to a certain element at 
the far—well, at an end of a spectrum. And the same has been said 
in regards to Judge Bork at the other end of this spectrum. 

Do either one of you see any harm, fault, or whether it is healthy 
or unhealthy in the end if a person is appointed to the Court and 
has, in effect, gone through a period of 10-15 years as campaigning 
for it? 

Mr. Clay. Well, I would like to take a crack at that one, Senator. 
I think it is a deplorable practice. I really don’t think people should 
campaign for the Supreme Court. I think, if they are interested in 
the Supreme Court, they should demonstrate their qualifications 
by the quality of their judicial work, if they are on the court, or 
their practice, if they are in private practice, or in other ways. 

But I think it could lead to all kinds of very unhappy things if 
people were to customarily campaign for the Court. 

Mr. Roberts. I think I would agree with John. I would say, how¬ 
ever, that I would not want to suggest that Judge Bork, in fact, did 
that; nor do I think that Professor Tribe is doing that. 

Senator Heflin. Well, I am just saying there are people that said 
that. I am not saying it, either. 

Mr. Roberts. If it were to occur, I think it allows a judge or a 
law professor to change his or her views in ways that are not 
healthy, if he is trying to trim to whatever the prevailing political 
whims are at that period, and that would be unfortunate I think. 

Senator Heflin. And the winds may change. 

Mr. Roberts. Yes, indeed. 

Mr. Boley. Senator? 

Senator Heflin. There may have to be certain changes in order 
to keep up with the prevailing wind and the direction of the pre¬ 
vailing wind. 

All right, sir. 

Mr. Boley. I was just going to disagree mildly with my counter¬ 
parts here. I think I see no problem with campaigning in the gen¬ 
eral sense if someone wants to end up eventually on the Supreme 
Court. I have no difficulty with that. 

The difficulty I do have is when there is a short term and they 
are trying, in effect, to tailor their views to a particular Presidents 
or party’s views. That may not be a true distinction here. But I, in 
general, in other words, do not have any problem with anyone 
seeking to end up on the Supreme Court. It is not an aspiration I 
share, but I think many lawyers would share it. 

Senator Heflin. Well, while you don’t concur in the result, your 
logic is about the same. 

Mr. Boley. Yes, sir. 

Senator Heflin. All right, sir. Well, we thank you. 

Mr. Roberts. Thank you, Senator. 

Mr. Clay. Thank you. 

Senator Thurmond. Thank you, gentlemen, for appearing. 



3791 


Senator Heflin. Our next witness is Mr. Roy Innis. Mr. Innis is 
the head of Congress on Racial Equality, which is a civil rights or¬ 
ganization. 

Mr. Innis, if you would raise your right hand and repeat after 
me. 

Do you solemnly swear that the testimony you are about to give 
will be the truth, the whole truth, and nothing but the truth, so 
help you God? 

Mr. Innis. I do. 

Senator Heflin. Do you have an opening statement? 

Mr. Innis. Yes, I do. 





3792 


TESTIMONY OF ROY INNIS 

Mr. Innis. As chairman of the Congress of Racial Equality, I sup¬ 
port the nomination of Robert Bork to be an Associate Justice of 
the United States Supreme Court because I believe that he will 
apply the law in a fair and evenhanded way. His record as Solicitor 
General and as a federal appellate judge attest that Justice Bork 
would vigorously enforce civil rights laws on our statutes book and 
in the Constitution. 

I also believe that Judge Bork’s presence on the Supreme Court 
can contribute mightily to the efforts to confront and mitigate one 
of the most pressing problems facing black America today—urban 
crime. 

I asked to come here in part to register my dissent from the 
monolithic voice of the organized civil rights orthodoxy of this 
country. This orthodoxy would seek to stifle dissenting voices in 
the black community. It would seek in the activist decision of yes¬ 
terday solutions to very different problems facing our people today. 
This effort is futile, for the types of problems the black community 
faces cannot be solved primarily in the courts. 

I wish to express my disappointment in those who have ignored 
Judge Bork’s record in government service and instead seek to 
judge him by certain theoretical positions that he had taken as a 
professor many years ago. These people have, in my opinion, suc¬ 
cumbed to the very evils of prejudgment that we as a movement 
have tried so hard to combat for so many years. 

Judge Bork’s firm approach to criminal law is a matter that 
should be of interest to the civil rights community, for crime preys 
more savagely on the poor of our major urban centers. Judges who 
show excessive concern for the rights of criminals and not enough 
for the victims of crime, do a disservice to all Americans, but par¬ 
ticularly to the urban poor who bears the brunt of the enormous 
cost of rampant crime in our society. 

Judge Bork does not coddle criminals; rather, he applies the law 
and the Constitution in a fair and impartial manner. For example, 
Judge Bork believes that criminals should not be set free for tech¬ 
nical errors by the police wherein a deterrence to unconstitutional 
behavior is possible. Nor would Judge Bork stray from the plain 
terms of the Constitution to Find that States cannot apply the 
death penalty in order to deter the commission of the most heinous 
crime. 

But, at the same time. Judge Bork has not hesitated to vote for 
the reversal of a conviction when he believes that that is what the 
law requires. 

This all brings me to why I asked to appear on behalf of Judge 
Bork. I was watching these proceedings, and knowing what I know 
of Judge Bork’s public record on civil rights and his high quality as 
a lawyer, judge and legal scholar, I asked myself why the opposi¬ 
tion to Judge Bork from my colleagues in the civil rights communi¬ 
ty were so intense. 

It is true that in the past he took some academic position with 
which I and my colleague—my comrades in the civil rights move¬ 
ment have strongly disagreed. But I know that many who opposed 
the Civil Rights Act of 1964 for considerably less noble reasons 



3793 


than the libertarian rigor that Judge Bork was pursuing have later 
become great allies of civil rights and the civil rights movement. 

People change. And Judge Bork has indicated his agreement 
with the civil rights laws, and by his actions and words, for many 
years. Despite his record of public service, Judge Bork has been 
wrongly attacked by my colleagues. I believe quite frankly that he 
has become the victim of a rigid and selectively unforgiving civil 
rights movement orthodoxy to whom the results desired have 
become more important than the fair and impartial application of 
law. 

My colleagues have chosen to ignore Judge Bork’s remarkable 
record of concrete civil rights achievement and have latched onto, 
in some cases distorted some of the man’s ancient academic views 
in order to whip people into an irrational hysteria. To defeat him 
on this basis would be more than unfortunate. 

What is upsetting my colleagues, I believe, is the notion that 
Judge Bork’s exercise of judicial restraint will not guarantee the 
results that many of them want irrespective of what the Constitu¬ 
tion and law requires. The tragedy of this misguided view is that 
this desire for an activist judiciary clearly shows how out of touch 
much of the civil rights movement is with the problems facing 
black Americans in the 1980’s. 

Rampant crime, inadequate education, single-parent families, 
teenage unemployment, AIDS and drug abuse, unlike desegrega¬ 
tion and equal employment opportunities, are not problems that 
can be solved by even the most activist judiciary. 

In closing, I would like to commend highly Professor Thomas 
Sowell and Attorney Jewel La Fontant for testifying at these hear¬ 
ings in support of Judge Bork. In the past, one had to have courage 
to fight wrongs from outside of the community. Today, one has to 
have strength and courage to combat evil from within our commu¬ 
nity. We must beware of the arrogance of early conversions. Late, 
deliberately arrived at conversions often are better. 

It is for this reason that I support the confirmation of Judge 
Robert Bork to be an Associate Justice of the United States Su¬ 
preme Court. 

[Prepared statement follows:] 




3794 


ROY INNIS 

NATIONAL CHAIRMAN OF THE CONGRESS ON RACIAL EQUALITY 
CONFIRMATION HEARINGS FOR SUPREME COURT NOMINEE 
ROBERT H. 90RX 
BEFORE THE 

SENATE JUDICIARY COMMITTEE 


September 30, 1997 



3795 


STATEMENT op rot innis 

As Chairman of the Congress on Racial Equality, I strongly 
support the nomination of Robert H. Sorlc to be an Associate 
Justice of the United states Supreme Court because I believe that 
he will apply the lav in a fair and even-handed vay. His record 
as Solicitor General and as a federal appellate judge amply 
attests that Justice Bork will vigorously enforce the civil 
rights lavs on our statute books and in the Constitution. I also 
believe that Judge Bork's presence o'n the Supreme Court can 
contribute mightily to the efforts to confront and mitigate one 
of the most pressing problems facing black Americans today — 
urban crime. 

I asked to come here in part to register my dissent from the 
monolithic voice of the organized civil rights orthodoxy of this 
country. This orthodoxy would seek to stifle dissenting voices 
in the black community. It would seek in the activist decisions 
of yesterday solutions to very different problems facing our 
people today. This effort is futile, for the types of problems 
the black community presently faces cannot be solved primarily in 
the courts. 

Finally, I wish to express my disappointment in those who 
would ignore Judge Bork's exemplary record in government service 
and Instead seek to judge him by certain theoretical positions 
that he had taken as a professor many years ago. These people 
have, in my opinion, succumbed to the very evils of prejudgment 
that we as a movement have tried so herd to combat for so many 
years. 


68-374 0 - 89-35 





3796 


As Solicitor General, Robert H. Bork was a strong friend of 
the civil rights movement. As I understand it, between 1973 and 
1977, Solicitor General Sort represented the federal government 
in 20 substantive civil rights cases before tile United States 
Supreme Cotirt, and in 18 of those cases, he took the side of the 
civil rights plaintiff or the minority interest. In these cases, 
it is worth noting, the Justice most likely to accept the 
arguments advanced by Solicitor General 9ork was Justice 3rennan, 
who agreed with him in 17 out of 19 cases. Chief Justice Burger 
and Justice Rehnquist disagreed with Judge Bork more than any 
other Justices, and, indeed, rejected his arguments more often 
than not. Significantly, Justice Powell, vhom Judge Bork has. 
been nominated to replace, took positions less hospitable to the 
civil rights claim than those urged by Solicitor General Bork in 
a significant proportion of the civil rights cases argued during 
Solicitor General Bork's tenure. Similarly, in many instances, 
the argument advanced by Solicitor General Bork was broader than 
that which the Supreme Court was itself ultimately willing to 
accept. 

Several of these cases have also been landmarks in the 
struggle for racial equality. In Runyon v. McCrary . 427 U.S. 160 
(1976), for example. Solicitor General Bork successfully argued 
for the application of section 1 of the Civil Rights Act of 1866, 
42 U.S.C 4 1981, to a private party’s racially discriminatory 
refusal to enter into a contract. It is vorth noting that the 
rule of law that Solicitor General Bork successfully pressed in 
this case could have served as the basis for invalidating the 



3797 


racially restrictive covenant at issue in Shellev v. xramer . 334 
U.S. 1 (1948),' for a restrictive covenant is a form of contract. 
Thus, it seems to me that those who have criticized Judge Borlt 
for his theoretical criticism of the fourteenth amendment 
rationale in the Shelley case do him a disservice by not 
acknowledging his strong endorsement of eliminating racially 
restrictive covenants, his hostility to racial discrimination 
more generally, and the real and practical contribution that he 
made in Runyon and other cases in combatting racial 
discrimination. 

Other instances of signinficant civil rights victories by 
Solicitor General Bork include Lau v. Nichols . 414 U.S. 563 
(1974), a bilingual education case in which he persuaded the 
Supreme Court to adopt the dissenting opinion of Circuit Judge 
Shirley Hufstedler and to hold that Title VI reached actions 
discriminatory in effect. He also argued cases which made it 
easier for civil rights plaintiffs to use statistical evidence 
and proof of discriminatory effects in order to establish 
employment discrimination claims. See Teamsters v. united 
States . 431 U.S. 324 (1977); Franks v. Bowman Transportation Co. . 
424 U.S. 747 (1976). In Fitzpatrick V. Bitzer . 427 U.S. 445 
(1976), moreover. Solicitor General Bork argued (or broad 
congressional power to subject the States to money damages if 
they engaged in employment discrimination. 

While there are numerous other examples of Solicitor General 
Bork's commitment to the principle of racial equality, this 
sample suffices to show his immense contribution to making that 


3 




3798 


principle a reality. Indeed, and perhaps most significantly, in 
many of these cases ( Runyon and Fitzpatrick , to name just two) 
Solicitor General Barit was filing briefs as a "friend of the 
court;" in other words, he did not not have to file the briefs he 
filed in order to defend the federal government in court, but he 
was persuaded by those in the Civil Rights Division that taking 
those post ions was the right thing to do. 

Since his appointment to be a Judge on the United States 
Court of Appeals for the District of Columbia Circuit, Judge Bork 
has clearly reaffirmed his commitment to the energetic 
enforcement of civil rights laws. In County Council of Sumter 
County v. United States . 696 F.Supp. 35 (D.D.C. 1934), for 
example. Judge Bork sat as a visiting judge on the local district 
court and joined a per cur jam opinion strongly defending the 
voting rights of black citizens. Judge Bork held that a county 
had failed to prove that a new at-large voting system had neither 
the purpose nor the effect of diluting black voting strength. 

Mot long ago, moreover, in Emorv v. United States . 819 F.2d 291 
(D.C. Cir, 1987), Judge Bork joined a per curiam opinion 
reversing a district court's decision dismissing a black naval 
officer’s claim that the Havy had discriminated against him in 
refusing to promote him to Admiral. The D.C. Circuit's opinion 
held in strong terms that the sensitive, military decisions about 
the composition of the armed forces did not free the navy of its 
constitutional obligation to make such decisions in a 
nondiscriminatory manner. Judge Bork has also voted in several 
cases for the position that the federal law demands equal 


4 



3799 


treatment of similarly situated male and female employees, 
whether in or out of government. See ?a Imer v. Schulte . 315 F.2d 
34 (D.C. Cir. 1937); La:fey v. Northwest Airlines . 740 ?.2d 1071 
(D.C. Cir. 1934), cert, denied . 469 U.S. 1181 (1935); Csoskv v. 
Wick . 704 F.2d 1264 (D.C. Cir. 1983). In ail. Judge 3ork has 
voted for the civil rights claimant in seven out of eight 
substantive civil rights cases that he has heard since his 
elevation to the appeals court. 

Judge Bork's firm approach to the criminal laws is a matter 
that should be of interest to the civil rights community, for 
crime preys most savagely on the poor in our major urban centers. 
Judges who show excessive solicitude for the rights of criminals 
and not enough for the victims of crime do a disservice to all 
Americans, but particularly to the urban poor who bear the brunt 
of the enormous cost of rampant crime in our society. Judge Bork 
does not coddle criminals; rather, he applies the laws and 
Constitution in a fair and impartial manner. For example. Judge 
Bork believes that criminals should not be set free for technical 
errors by the police ’Cw]hare no deterrence of unconstitutionl 
behavior is possible.* See United States v. Mount . 757 F.2d 
1315, 1323 (D.C. Cir. 1985) (Bork, J., concurring). Nor would 
Judge Bork ever stray from the plain terms of the Constitution to 
find that the States cannot apply the death penalty in order to 
deter commission of the most heinous crimes. But at the same 
time. Judge Bork has not hesitated to vote for the reversal of a 
conviction when he believes that that is what the law requires. 
See, e. q . . United States v. Foster . 783 F.2d 1087 (D.C. Cir. 

1986) . 


5 



3800 


This all brings xe to why I came here — and I feel it 
important to note that 1 asked to appear on behalf of Judge Bork. 
1 was watching these proceedings, and knowing what I know oc 
Judge aork'3 public record on civil rights and of his high 
quality as a lawyer, judge, and legal scholar, I asked myself why 
the opposition to Judge 3ork from my colleagues in the civil 
rights community was so intense. It seems to me that we should 
be embracing this man instead. 

It is true that in the past, he took some academic positions 
with which I and my comrades in the civil rights movement have 
strongly disagreed. But I know that many who opposed the Civil 
Rights Act of 1964 for considerably less noble reasons than the 
libertarian rigor that Professor Bork vas pursuing have later 
become great allies of the civil rights movement. 2 People 
change, and Judge Bork has indicated his agreement with the civil 
rights laws by his actions and words for many, many years. 

I also find it difficult to find fault with Judge Bork 
because of Professor Bork's theoretical disagreement with a 
Supreme Court case that invalidated a nondiseriminatorv poll 
tax. 2 Nor can I get exercised by the fact that as a matter of 
theory, Professor Bork disagreed with the Supreme Court's opinion 
permitting Congress to use its constitutional power to remedy 


Indeed, Professor Bork was extremely careful to make it 
perfectly clear that he found racial discrimination morally 
reprehensible — as he put it, a principle of "unsurpassed 
ugliness." 

2 See Harper v. Virginia Board of Elections , 383 U.S. 663 (1966). 


6 



3801 


racial discrimination in order to outlaw nondiscriminatorv 
literacy tests'. 3 Me all know that poll taxes and literacy tests 
are pernicious devices in general, and have often been used for 
ignoble and racist purposes. I would certainly have serious 
reservations about this nomination if Robert H. Bork had ever 
endorsed such devices as a matter of policy or if he had ever 
remotely suggested that discriminatory poll taxes or literacy 
tests were anything but unlawful. He has not, and, in fact, he 
has clearly stated that he would find discriminatory poll taxes 

or literacy tests unconstitutional under the fourteenth 

4 

amendment. 

Despite his record of public service, Judge Robert H. Bork 
has been roundly attacked by my colleagues. I believe, quite 
frankly, that he has become the victim of a rigid and selectively 
unforgiving civil rights movement orthodoxy to whom the results 
desired have become more important than the fair and impartial 
application of the law. My colleagues have chosen to ignore 
Judge Bork's remarkable record of concrete civil rights 
achievement and have latched onto and, in some cases, distorted, 


See Katzenbach v. Morgan . 384 U.S. 641 (1966). Professor 
Bork's objection was to the notion that Congress could by 
majority vote overrule a Supreme Court opinion that had held 
nondiscrminatory literacy tests constitutional. That Judge 
Bork's position on this question is a matter of principle is 
clearly shown by his later opposition to using the same 
congressional power to redefine the human life as beginning at 
conception, which would have effectively overruled Roe v. Made, 
410 U.S. 113 (1973), which he had described as an 
"unconstitutional" decision. 

4 

He also does not disagree with the Supreme Court decision 
upholding Congress’ power to outlaw discriminatory literacy 
tests. See South Carolina v. Katzenbach . 333 U.S. 301 (1966). 


7 




3802 


some of the man's ancient academic views in order to whip people 
into an irrational hysteria. To defeat him on this basis would 
be more than unfortunate. 

At root, the reason for which I believe my colleagues wish 
to defeat Judge Boric, even unfairly, is, to me, a most 
unfortunate one. One of my colleagues put it well in saying that 
in the old days, to us, "the Supreme Court was the voice of God." 
It is true that many of us have looked to the courts to right the 
wrongs and fix the injustices heaped upon us by a tragic part of 
American history. But the wounds that the Court healed in the 
past several decades are not anything that Judge Bark has any 
desire to reopen, and I believe that ray colleagues know that he 
would vigorously enforce the guarantee of equality in the 
Constitution and laws of the United States. More importantly 
still, we are now more in command of our own destinies, and need 
not rely so strongly on the benevolence of five judges to make 
our advances. 

What is upsetting my colleagues, I believe, is the notion 
that Judge Bork's exercise of judicial restraint will not 
guarantee the results that many of them want irrespective of what 
the Constitution and the law requires. The tragedy of this 
misguided view is that this desire for an activist judiciary 
clearly shows how out of touch much of the civil rights movement 
is with the problems facing black Americans in the 1980s. 

Rampant crime, inadequate education, single-parent families, 
teenage unemployment, AIDS, and drug abuse, unlike desegregation 
and equal employment opportunities, are not problems that can be 


8 



3803 


solved by even the most activist judiciary. It will take the 
patient and dedicated efforts of the black community, church 
groups, the government, and society in general to meet the 
serious challenges facing black Americans today. Reliance on the 
Supreme Court to solve these problems for us is both foolish and 
sad. 

As for the courts, 1 believe that black Americans, like all 
Americans, will be best served by courts staffed by judges who 
will apply the laws with honesty, -impartiality, and fairness. It 
is for this reason that ! strongly support the confirmation of 
Judge Robert H. Bark to be an Associate Justice of the United 
States Supreme Court. 

I commend highly Professor Thomas Sowell and attorney Jewel 
LaFontant for testifying at these hearings in support of Judge 
3ork. In the past one. had to have courage to fight wrongs from 
outside of the community. Today, one has to have strength and 
courage to combat evil from within our community. Ha must bevara 
of the arrogance of early conversions. Late, delibarately 
arrived at conversions!of ten are better. 


I i 

i 

i 

i i 


9 



3804 


Senator Metzenbaum. Thank you, Mr. Innis. 

Senator Specter. Mr. Chairman, I wonder if I might ask one 
question at this point because I have a commitment that I have to 
go to. 

Senator Metzenbaum. If Senator Thurmond has no objection, I 
have none. 

He wants to ask one question. 

Senator Specter. If you would yield for a single question at this 
point. 

Senator Thurmond. Yes. Go ahead. 

Senator Specter. I am very interested in your testimony, Mr. 
Innis. The sole question that I have for you is whether you have 
any concern about the consistency of Judge Bork’s writings prior to 
the time that the hearing started on the equal protection clause, 
where he had taken the position that equal protection as a matter 
of original intent to the framers was limited to racial issues, and 
then more recently had said that it applied as well to ethnic con¬ 
siderations, but at this hearing said that he now regarded equal 
protection as applicable to women, to illegitimates, to indigents, 
and the broad range of rights comprehended by court decisions. 

And my question for you is, do you have any concern that for so 
much of his professional career, up until the time he testified here, 
he had limited equal protection to just race and ethnics? 

Mr. Innis. I am impressed, Senator, with Judge Bork’s ability to 
learn and to be flexible and to rethink his position. I think that is 
a very good thing. I think we can look from the time he was a pro¬ 
vocative professor at Yale to becoming the Solicitor General to the 
federal judge to even this hearing we have seen growth. I do not 
see any strange deviation. I see growth, and I think that is positive. 

We, in the civil rights movement, I think should take some credit 
for that. It is my feeling that the only person that I know of who 
was in public life who had been completely consistent on civil 
rights and other matters was Hubert Humphrey. Everybody else is 
a late convert. 

Senator Specter. Thank you very much, Mr. Innis. Thank you, 
Mr. Chairman. And thank you, Senator Thurmond, for yielding. 

Senator Metzenbaum. Mr. Innis, would you support Judge Bork 
in his criticism of the Supreme Court's decision with respect to the 
issue of one man, one vote? 

Mr. Innis. No, I do not. But again, I do not want to quibble with 
which of Judge Bork’s position I agree or disagree with. I have 
heard the best legal scholars in America before this committee. 

Senator Metzenbaum. You think it would be a quibble? How 
many blacks do you think would be holding public office today in 
the South if the one man, one vote decision had not remained the 
law and had been changed as Judge Bork would have changed it? 

Mr. Innis. I think America would be a very different place, and I 
think Judge Bork himself has said that he had seen now from prac¬ 
tice, from these changes, from the 1964 civil rights bill, from other 
developments coming out of the 1960’s, he has seen that America is 
a better place for it. 

Senator Metzenbaum. Do you agree with his criticism of the Su¬ 
preme Court in upholding the constitutionality of the public accom¬ 
modations law? 



3805 


Mr. Innis. I think he has changed his position on that. To our 
credit in the movement. I will say again that we, in the movement, 
should take great pride in the fact that Judge Bork and many 
others have changed their position in that. 

Senator Metzenbaum. Would you agree with his position with 
respect to his criticism of the Supreme Court for its decision out¬ 
lawing restrictive covenants? Does that bother you at all? 

Mr. Innis. Many things, many of the academic positions taken by 
Judge Bork before becoming the Solicitor General and before be¬ 
coming an appellate judge bother me tremendously. At the same 
time, I have studied his record as the Solicitor General and his var¬ 
ious amicus briefs, and I am very impressed with his faithfulness to 
civil rights. And I am very impressed with his rulings as a judge on 
the appellate bench. 

Senator Metzenbaum. Thank you, Mr. Innis. 

Senator Thurmond? 

Senator Thurmond. Mr. Innis, I am very glad to see you and 
very glad to have you here. Is it your opinion if Judge Bork is con¬ 
firmed for the Supreme Court that he would be fair to black 
people? 

Mr. Innis. Yes. I think he would bring a vigorous debate to the 
Court, and I believe that he will be very much influenced not just 
by those members of the Court who will share his particular philo¬ 
sophic persuasion but by all the members of the Court. 

Senator Thurmond. Professor Ronald Davenport, of Duquesne 
University, Thomas Sowell, of the Hoover Institute, and Jewel La 
Fontant, Deputy Solicitor General under Judge Bork—all black 
people—all testified the same way: that they felt that he would be 
fair to black people. 

There have been charges by some that he wouldn’t be fair to 
black people and fair to women and fair to this and that, and there 
is really no basis for that now, is there? Under the decisions he has 
handed down, his actions as Solicitor General, and under decisions 
he has handed down in the court, and that is the real test, that is 
the result. That is the actions he took as a judge. 

He wrote 150 decisions, participated in 400 decisions. In not a 
one of them has he shown any inclination not to be fair to blacks 
or women, has he? 

Mr. Innis. That is true. In fact, I am very impressed with the tes¬ 
timony of Attorney Jewel La Fontant, who worked for Judge Bork 
as Deputy Solicitor General. And I was impressed with her testimo¬ 
ny as a black and also as a woman as to his fairness to her from 
personal knowledge. 

Senator Thurmond. I just want to ask you this question. Do you 
know of any reason why we should not confirm Judge Bork with 
this fine record here as Solicitor General and on the circuit bench? 
In spite of when he was teaching if he carried on provocative or 
controversial discussions or wrote things that were controversial, 
do you know of any reason? 

And, as you say, time has changed, progress has come, and you 
are satisfied with the man’s actions as Solicitor General and on the 
circuit court, aren’t you? 

Mr. Innis. I am. And let me say that, if he is not confirmed be¬ 
cause of the hysteria and the disinformation campaign as stated by 





3806 


Chief Justice Warren Burger and others, it will be a disservice to 
this institution and to the country. 

Senator Thurmond. Now I want to ask you this direct question. 
Do you feel that Judge Bork is qualified by reason of his integrity, 
his judicial temperament, and his professional qualifications and 
competence, because of the courage he has shown in decisions he 
has written, the dedication to duty, and being such a fine scholar 
with a very imaginative mind—do you feel he will make an excel¬ 
lent Supreme Court Justice of the United States or not? 

Mr. Innis. I do. And let me say that I am impressed with the fact 
that even his opponents are equally impressed with his integrity. 
And when he made a commitment to this committee as to his posi¬ 
tion and the re-evaluation and reassessment of his old position, I 
believe he will stick to that commitment. 

Senator Thurmond. Therefore, I assume that you recommend 
that the Senate confirm him. 

Mr. Innis. I do so. 

Senator Thurmond. Thank you very much. 

The Chairman. The Senator from Alabama? 

Senator Heflin. Mr. Chairman, I just received a message that I 
have some constituents from Alabama that have come up here to 
see me, so I will refrain from asking any questions and visit with 
my constituents. 

The Chairman. Thank you very much. Thank you for coming, 
Mr. Innis. Appreciate it very much. 

Our next panel will be composed of two witnesses who are mem¬ 
bers of what is referred to as the Pocketbook Coalition, a coalition 
of consumer and small business groups: Mr. Daskal—I hope I pro¬ 
nounced that correctly—the Chairman of the Pocketbook Coalition, 
and counsel for the Service Station Dealers of America; and Mr. 
Albert Foer, chairman of Melart Jewelers—I am probably mispro¬ 
nouncing that—and former lawyer with the Federal Trade Com¬ 
mission. 

Would you both stand to be sworn, please? 

Do you swear the testimony you are about to give will be the 
truth, the whole truth, and nothing but the truth, so help you God? 

Mr. Daskal. I do. 

Mr. Foer. I do. 

The Chairman. Thank you very much, gentlemen. If you will 
proceed in whichever order you would prefer; and, again, please try 
to keep your comments to 5 minutes. It would be much appreciat¬ 
ed. 

Excuse me. I beg your pardon. Before you begin, the Senator 
from Ohio asked for a few minutes prior to this testimony. 

Senator Metzenbaum. Thank you very much. 

There were a couple of things that occurred this morning when I 
couldn’t be here, I was on the floor of the Senate. 

One, my colleague. Senator Simpson, I think made the argument 
with the Rabbi witness, I don’t know his name, that people were 
accusing Bork of anti-Semitism. As one who would be particularly 
sensitive to that issue, I want to say that I know of no evidence to 
that effect. I know of no claim that has been made to that effect, 
and I want to put that kind of a statement to rest as promptly as 
possible. 



3807 


I may have reasons to disagree with Judge Bork and whether he 
should or should not be confirmed, but any claim of anti-Semitism 
is not a factor in that consideration. 

And then Senator Grassley mentioned that I had stated at the 
time that Judge Bork was up and had referred to a statement I 
made when Justice O’Connor was up before us for confirmation 
and that I had indicated that my views might differ from hers with 
respect to any one of a number of different issues. 

I made that suggestion with respect to the antitrust matter when 
Judge Bork was Before us. I might say that if the only issue were 
antitrust, and there were a difference of opinion, that might be one 
thing. But there are so many different issues having to do with 
equal protection for women, and the right of privacy, and the pro¬ 
tection of minorities, freedom of speech, executive power, access to 
courts for citizens, basic approach to the Constitution, as well as a 
number of other concerns that the same approach cannot be taken 
because it isn’t any one of them. 

There’s no secret about it, that when Justice O’Connor came 
before us for confirmation one of the main issues had to do with 
the case of Roe v. Wade. And I think it’s also fair to say that when 
Justice O’Connor and Justice Scalia came before us there was no 
evidence that either of them had a record showing hostility to a 
long line of Supreme Court decisions. 

In this case I think the record not only shows hostility but a will¬ 
ingness—almost an avid enthusiasm—to overrule precedent. And 
so I’m sorry my colleague, Senator Grassley, is not with us at the 
moment, but I did want, before this hearing concluded, to respond 
to that comment that had been made, and I thank you, Mr. Chair¬ 
man, for your patience. 

The Chairman. Thank you. And before we interrupt any other 
witnesses, Senator Thurmond and I have been discussing here, and 
for those who may have some interest—and I would ask Senator 
Thurmond to comment on this—we have a scheduled executive 
committee meeting for tomorrow. 

We are going to cancel that meeting, schedule the executive com¬ 
mittee markup for 2:00 o’clock on Tuesday, next Tuesday, at which 
time there will be a vote on the nomination of Judge Bork, and 
there will be—I ask unanimous consent that there be no motion to 
carry over the nomination for another week, which would be the 
right of individual Senators. 

So if I have agreement from the ranking member, and my col¬ 
leagues—I believe all the Democrats are in agreement—that we 
will begin discussion at 2.00 on Tuesday next, October the 6th, at 
which time we will vote on the nomination of Judge Bork, and 
there will be no motion in order to hold over the nomination in ex¬ 
ecutive session for a week, which is ordinarily the right each Sena¬ 
tor has. 

And the Senator suggests I would move that we begin the meet¬ 
ing at 2:00, and that we vote no later than 5:00. I hope we vote 
within the first half hour. 

Senator Metzenbaum. Mr. Chairman, I have no objections to 
that procedure, but I’m thinking that if I were not present and did 
not know that you were going to make that unanimous consent re¬ 
quest, whether or not I might in some way feel put out. 




3808 


I would like to suggest to you that both you and Senator Thur¬ 
mond, respectively, check with the other members on each side 
very promptly to be certain that they have no objection to you 
asking this. 

The Chairman. We will do that. That’s a good suggestion; we 
will do that, and if there is no further comment by the Chair by 
5:00 o’clock today it can be assumed we have gotten all of them to 
agree. 

Now, I apologize for our business getting in your way, gentlemen, 
but would you please proceed. 



3809 


TESTIMONY OF A PANEL CONSISTING OF DIMITRI G. DASKAL 
AND ALBERT A. FOER 

Mr. Daskal. Senator Biden, I would like to start with a brief dis¬ 
claimer that, although I am one of the counsel to the Service Sta¬ 
tion Association, I’m wearing the hat of the chairman of the Pock- 
etbook Coalition, not appearing as counsel. 

The Chairman. You are not appearing on behalf of the Service 
Station Owners? 

Mr. Daskal. I am appearing on behalf of the Pocketbook Coali¬ 
tion, which is a bipartisan group of businesses, executives and con¬ 
sumer groups that oppose the confirmation of Judge Bork. 

The Chairman. What is that word that you’re using, 
“pocket"-? 

Mr. Daskal. Pocketbook Coalition. Pocketbook, like “purse.” 

The Chairman. Thank you very much. 

Mr. Daskal. Yes, Sir. Our opposition is based on his writings, 
and most importantly his record as a judge in the area of antitrust 
law. We believe that if Judge Bork is confirmed we all, quite liter¬ 
ally, will pay the price. 

The harm to consumers that would occur if Justice Bork were to 
be permitted to implement an activist antitrust philosophy is most 
vividly demonstrated in the area of resale price maintenance, 
better known as vertical price-fixing by manufacturers and distrib¬ 
utors. 

In 1975, when this committee reported legislation repealing the 
Fair Trade laws, which it termed as legalized price-fixing, its study 
found that the practice caused consumers $2.1 billion per year. 

In the area of shoes and clothes alone, American consumers 
saved $4 billion in 1986 by being able to purchase name-brand 
goods at off-price retailers. 

While American consumers vote for off-price retailing with their 
feet and with their pocketbooks. Judge Bork maintains that con¬ 
sumers would be better served by having to purchase at stores at 
full manufacturer retail price which, in his view, provides superior 
service. This so-called “free ride” myth is exploded by the fact that 
83 percent of those who shop at discount off-price stores cite supe¬ 
rior service as one of the major reasons they shop these stores. 

Judge Bork tells the nation’s 60,000 independent gasoline retail¬ 
ers they should not be legally free to set prices at their stations. In 
the appendix to his chapter on price-fixing in, “The Antitrust Para¬ 
dox,” he writes, and I quote: 

“A line of Supreme Court cases has destroyed refiners’ ability to 
set stations prices and thus destroyed this efficiency.” 

Thus, under his view, gasoline prices in Birmingham, Alabama, 
could legally be set by corporate managers in Houston, Texas, 
rather than by local businessmen in competition with each other. 

His views in the areas of mergers are equally trouble-some. In 
the area of horizontal mergers, a major driving force behind the 
enactment of the Sherman Act, one could reassemble the original 
Standard Oil Trust. Thus Exxon, Chevron, Mobil, Marathon and 
Amoco could merge into a new Standard Oil, which could then le¬ 
gally dictate gasoline prices across the country. 




3810 


Similarly, several of the nation’s largest department stores could 
merge, and discounters could be denied access to products most de¬ 
sired by consumers, simply on their whim. We submit that to allow 
such results under the guise of implementing the original intent of 
the framers of the Sherman Act and other antitrust laws would be 
truly perverse. 

Judge Bork goes further than other conservative scholars in stat¬ 
ing that all vertical restraints of trade should be held always legal. 
In the last Congress, when the Justice Department issued its verti¬ 
cal antitrust guidelines, which were much more liberal than Judge 
Bork’s view, Congress reacted by passing House Resolution 303, 
which stated that these guidelines were not an accurate statement 
of the law. 

An example of the harm that consumers could possibly suffer by 
vertical restraints is demonstrated by exclusive dealing contracts. 

In 1986, when crude oil prices dropped rapidly, oil companies 
dramatically dropped prices to wholesalers, but did not pass on the 
full price cuts to direct-serve retailers who were tied in by exclu¬ 
sive dealing contracts. The retailers were able to purchase the 
identical branded product 15 to 30 cents per gallon cheaper from 
wholesalers, but were threatened with termination if they did so. 

These practices, which would pass Judge Bork’s antitrust scru¬ 
tiny, cost American voters $1 billion, according to a study by the 
Citizens Energy/Labor Coalition. 

We ask, how is the interest of the American consumer served by 
denying him or her access to lower prices? Why should blue-jeans, 
shampoo, candy, compact disc players, cost the same in every store 
in our cities and towns? 

Consumer welfare is not what Judge Bork defines it as-the bene¬ 
fits of economic efficiency trickling down to consumers through cor¬ 
porate largess. Consumer welfare is enhanced when Americans of 
our nation are free to decide what mix of prices and services he or 
she wishes in their stores. 

Judge Bork’s oft-quoted statement that a court that understands 
economic theory is free to state that a practice Congress thinks 
harms competition actually does not, is something that gives us 
great concern. 

Should Supreme Court justices be free to circumvent the clear 
intent of Congress based as what they see as their superior, en¬ 
lightened economic wisdom? We think not. 

Economic concentration was decried by Founding Fathers such 
as Thomas Jefferson and the authors of our antitrust laws. We be¬ 
lieve that Judge Bork’s confirmation would lead to increasing eco¬ 
nomic concentration: therefore, we oppose that confirmation. 
Thank you. 

[The statement of Mr. Daskal follows:] 



3811 


Statement of Jim Daskal, Chairman, 

The Pocketbook Coalition 

Mr. Chairman, members of the committee, my name 
is Jim Daskal, I am here as Chairman of The Pocketbook 
Coalition, a bipartisan group of businesses, executives 
and consumer groups opposed to the confirmation of Judge 
Robert Bork to the Supreme Court on the basis of his 
writings and record as a judge in the area of antitrust 
law. 

We believe if Judge Bork is confirmed, we all 
quite literally will pay the price. The harm to consum¬ 
ers that would occur if Justice Bork were to be permit¬ 
ted to implement his activist antitrust philosophy is 
most vividly demonstrated in the area of vertical price 
fixing by manufacturers and distributors. 

While American consumers vote for off-price 
retailing with their feet and their pocketbooks. Judge 
Bork maintains that consumers would be better served by 
having to purchase at stores that sell at full 
manufacturer's suggested price, which in his view 
provide superior services. The "free-ride" myth is 
exploded by the fact that 83% of off-price shoppers cite 
superior services such as convenient and timely avail¬ 
ability of the goods they desire as major reasons to 
shop off-price. 




3812 


- 2 - 


Judge Bork tells the nation's 60,000 independent 
gasoline retailers they should not be free to set prices 
at their stations. 

In Judge Boric's view, gasoline prices in 
Birmingham, Alabama should be set by the refiners' 
corporate managers in Houston, Texas, rather than local 
businessmen in competition with each other. 

Judge Bork is equally sanguine about other verti¬ 
cal restraints, all forms of which he believes should be 
held always legal . 

An example of the harm consumers would suffer 
under such a system of law occurred in 1986 when crude 
oil prices collapsed. Oil companies dramatically 
dropped prices to wholesalers, but did not pass on the 
full price cuts to their direct served retailers who 
were tied in by exclusive dealing contracts. The 
retailers were able to purchase the identical branded 
product 15-30 cents per gallon cheaper from wholesalers 
but were threatened with termination if they did so. A 
study by The Citizens Labor/Energy Coalition revealed 
that these practices, which Judge Bork would bless, cost 
American motorists $1 billion. 

Judge Bork's views on mergers are equally 
troublesome. Under his view of the law of horizontal 
mergers, the major companies of the Standard Oil Trust, 
one of the major evils that the Sherman Act was intended 



3813 


- 3 - 

to address, could be reassembled. Thus, Exxon, Chevron, 
Mobil, and Amoco could merge into a new Standard Oil, 
which could then dictate gasoline prices across the 
country. 

We submit that to allow such a result under the 
guise of implementing the original intent of the framers 
of the Sherman Act and our other antitrust laws would be 
truly perverse. 

Consumer welfare is enhanced not when big busi¬ 
ness enjoys efficiencies, but rather when Americans are 
permitted to exercise the freedom to decide what mix of 
price and services they wish to buy and sell. Consumers 
are not served when they are denied access to lower 
prices, or when they are stuck with a distribution 
system that requires them to pay the same prices for 
blue jeans, shampoo, candy, and Walkmans no matter where 
they shop. 

Should Supreme Court Justices be free to 
circumvent the clear intent of Congress based on what 
they see as their superior, enlightened economic wisdom? 
We think not. 

A vote for Judge Bork is a vote against the 
American consumer and a vote for the economic concentra¬ 
tion and the attendant evils that a century of antitrust 
law has attempted to abate. 

Thank you for this opportunity to share our 


views. 




3814 


APPENDIX 1 


PRICE FIXING (RPM) 


Appendix to Chapters ij and 14 


EFFICIENCIES FROM 
PRICE-FIXING AGREEMENTS 


435 


The efficiencies due may be achieved by « price-fixing agreement include: 

(1) Optimizing local sales effort (the “free tide** problem); 

(а) Optimizing local sales effort (product uniformity); 

(5) Reinforcing a market-division agreement; 

(4) Providing the mechanism for the transfer of information; 

( 5 ) Assisting the achievement of advertising economies of scale; 

( б ) Protecting one parry to a joint venture against the fraud of the other, 
nd 

(7) Breaking down reseller cartels and preventing the misuse of local re¬ 
seller monopolies. 

LOCAL SALES EFFORT: THE ‘'FREE RIDE" PROBLEM 

Price fixing can be a method of eliminating free rides in either a vertical or a 
horizontal contract integration. The argument is very similar to that made in 
connection with marker division. When prices are fixed, no purchaser is able to 
obtain the information he wanes from one seller and then purchase from another 
at a lower price. Each seller of the brand, therefore, is free to provide the 
optimal amount of selling effort without fear of a free rider. Where the seller’s 
price is maintained, he is forced by rivals, whether offering the same or ocher 
brands, to compete by other means, and this forces him to provide the local sales 
effort desired by the manufacturer or the group to which he belongs. Market 
division has the same effect where there is rivalry from other brands. Price fixing 
is likely to be preferred to market division as the means of attaining this efficiency 
in situations where effective marketing requires thorough coverage of an area 
through numerous sellers rather than use of a single outlet. 

LOCAL SALES EFFORT: PRODUCT UNIFORMITY 

Even where the free ride is not possible because the provision of sales effort 
and services necessarily occurs at the time of and in conjunction with the sale, 
price fixing may be an important means of ensuring the provision of sales effort 
and services. A good example is the provision of services in conjunction wicb the 
sale of gasoline. The importance of sales effort in such markets is too often over¬ 
looked, but it is dearly present. Much national refiner advertising of gasoline 
stresses che extra services, conveniences, and courtesies that the local dealers pro¬ 
vide. That there is a real concern about this local sales effort is demonstrated by 
the common refiner policy of instructing their dealers about such matters and 
policing dealer performance. 

The attempt to ensure the provision of such services seems to account, in part, 
for the persistent efforts of refiners to control the prices charged by their dealers. 
The question that naturally arises, however, is why refiners do not allow indi- 



3815 


43 <> Appendix to Chapters t} and 14 

vidua] dcal«n f© determine for themidwj whether a price or « service *ppe*l 
would be moit effective an their pvtkuUr markets. The answer may be twofold. 
The refiner may. feel that its marketing atvneo is significantly greater than that 
of the general run of the people it can attract at dealer*. Mote important, perhaps, 
is the fact that a large parr of the refiner's brand appeal to motorists rests on the 
uniformity of the product sold at it* stations. This uniformity does not depend 
on the physical qualities of the gasoline alone. The station also offers a number 
of services that may be classified a* local sale* effort: the availability and cleanli¬ 
ness of washroom facilities; the cleanliness of the station and the neatness of the 
attendants; the politeness or geniality with which service is given; the giving of 
(ravel directions; the availability of a range of services for the car (lubrication, 
tire and battery replacement, and minor repairs); recognition of credit cards; and 
(he provision, often without being asked, of such free services as wiping win¬ 
dows, ctvccking the pressure of tires, pumping air into tires, checking water and 
oil levels, etc These are as much a part of the product sold and paid for as is 
the gasoline. 

Since consumers of gasoline arc mobile, they will patronize many different 
dealers. A refiner wishing to appeal to those consumers who value a high degree 
of service must csraMish the uniformity of his product, so that consumers can 
relv on getting approximately *he same combination of physical product and 
services at any station carrying the brand. The deviation of any significant num¬ 
ber of stations from the product standard will lessen the effectiveness of the 
refiners advertising and reduce the appeal that uniformity makes in itself, 
line of Supreme Court decisions has destroyed the refiners" ability to control 
station prices, and has thus destroyed this efficiency.” 


REINFORCEMENT OF MARKET DIVISION 

Market division may tend to break down where the parties to the agreement 
sell to resellers In a system like Seajy's, chc existence of wholesalers or retailers 
would make the territorial division hard to police, and it would be difficult to 
know whether the manufacturer whose reseller sold across territorial lines had 
given a lower price with that end in view. The market division could be rein¬ 
forced either by an agreement on the prices at which the member manufacturers 
should sell to resellers or by an agreement that chc manufacturers should main¬ 
tain the resale prices of rheir resellers. The Scaly group did agree to maintain 
resale prices, and there are some indications in the record char this served to 
reinforce the manufacturers’ market-division agreement. This reioforcemem. of 
course, involves the "aggregation of trade restraints" that che Supreme Court 
found offensive, but such reasoning is beside the pome. If any of the restraints 
is harmful, it should be unlawful regardless of its "aggregation" with others If 
all the restraints arc merely methods of cseating efficiency, then their ’aggrega¬ 
tion" merely enhances their beneficial effect. 

TRANSFER OF INFORMATION 

The suggesting or setting of prices is a means of transferring information about 
proper market behavior from those whose competence or information is 


su- 





3816 


consumer <;oons pricing \<t 

P.L. !H-I4, r > 

ness of these, issues consists of their high yield and their tax exempt 
status. For some time, advocates of ‘‘tax reform” have spoken of their 
desire to sec the latter “shelter" removed. Title 11 of this bill will give 
this movement a powerful impetus. 

I am convinced that, should this occur the effect on local govcm- 
ments’ financing would be disastrous. Bond issues would go I togging 
for purchasers. The spoctor of defautt would loom over hundreds of 
our cities, and scores of states. And the guarantee provisions of Title I 
would be brought into play, with the Federal government finally bail¬ 
ing out everyone. 

I have sympathy for the people of Now York. But that sympathy 
does not extend to supporting legislation whose precedents I fear will 
visit New York’s plight upon countless othpr towns. State and local 
bonds havo been free from taxation almost ns long as they have been 
in existence. Tinkering with that fine system is ruinous fiscal policy. 
This bill 9hould be defeated. 

William M. Ketchttw. 

Donald D. Clanct. 


CONSUMER GOODS PRICING ACT OF 1975 

P.L. wje 89 Slat 801 

House Report (Judiciary Committee) No. 94-341, 

July 9, 1975 (To accompany H.R. 6971) 

Senate Report (Judiciary Committee) No. 94-466, 

Nov. 20, 1975 {To accompany H.R. 6971) 

Cong. Record Vol. 121 (1975) 

DATES OF CONSIDERATION AND PASSAGE 
House July 21, 1975 
Senate December 2, 1975 

The Senate Report is set out. 

SENATE REPORT NO. 94-466 

{page 1J 

The Committee on the Judiciary, to which was referred the bill 
(H.R. 6971) to repeal exemptions in the antitrust laws permitting 
State fair trade laws, having considered the same, reports favorably 
thereon, and recommends that the bill be passed. 

PtmrosE 

The purpose of the proposed legislation is to repeal Federal anti¬ 
trust exemptions which permit States to enact fair trade laws. Such 
laws allow manufacturers to require retailers to resell at a price set 
bv the manufacturer. These laws are. in fact, legalized price-fixing. 
They permit competing retailers to have identical prices and thus 


1569 



3817 


LEGISLATIVE HISTORY 
P.L. 94—M5 

eliminate. price. com|ictitioii between them. ltejieul of (lie fair tinde- 
Iiiwk should result in a loweriilg of consumer prices. 

This proposed legislation repeals tlie Mdlcr-Tvdings Act 'which 
emililes t lie Slates to enact, fair trade laws ami the McGuire Act which 
permits States to enact nonsigner provisions. Without these, exemp¬ 
tions the agreements they authorize would violate tile antitrust laws. 

Svn.sTvn.TioN of 11.11. CS)7l for S. 4OS 

A hill to iv|>eal fair trade enabling legishdion (S. |0S) was intro¬ 
duced in tin* Senate in .January 1975 by Kdwal'd lttookc (K-Ma-s.) 
and was pass'd unanimously from the Antitrust and Monopoly Snb- 
ronmiittec on May 5. llefore this comniittee was able to consider 
S. 408, tin* House of Representatives jiassed II.R. I!97l which is iden¬ 
tical to 408. except for the title of tlie hill. This committer voted to 
substitute H.R. 0971 for S. 408 in order to expedite passage of this 

[page 2] 

legislation. Without the substitution S. 408 would have had to he con¬ 
sidered by the House after the Senate passed it. The siilistitution per¬ 
mits the, bill to go directly to the President for consideration after 
passage by the Senate. 

Statv.mkst 

Fair trade, laws permit a manufacturer to enter into an agreement 
with a retailer setting (lie minimum or stipulated price at which his 
pioduet. may lie sold. California passed the lirst State law in 19.il and 
other States followed. It became apparent, however, that any state law 
which applied to interstate commerce, violated Federal ant it rust laws. 
Thus, in 1997, Congress passed the Miller-Tydings Act grant ing State 
fair tiade laws an exemption from the Sherman Antitrust Act. Some 
manufacturers attempted to set the resale, prices not only of retailers 
who had signed fair trade contracts but of retailers who bad not done 
so. In 1951, the Supreme Court, in Srhiret/mmut tiro!.. v. ('afreet />!.-- 
tUteri. Corp., 914 ll.S. 984 ruled this practice illegal. Congress reel ilint 
the situation in Jit.Vg by enacting the Mctiuirc Act which pci milted 
Stales to pass fair trade laws with nonsigner clauses. However, the 
fair trade contract could Ik- enforced against a nonsigner only as long 
as the manufacturer procured the signature of at least one retailer 
to a cold i act. 

At the time S. I <18 was introduced. 19 Stales had fair trade laws 
with nonsigner provisions atul liH Slates had fair trade laws without 
nonsigner provisions. The States with nonsigner provisions were Ai i- 
zeua. California, Connecticut. Jlelaware, Illinois. Maryland. New 
Hampshire. New Jcrscv, New York. Ohio. Tennessee. Yitgiina. and 
Wisconsin. 'I'he States with fair trade laws without nonsigner pro¬ 
visions were Arkansas. Colorado. Florida. (Jeorgia. Idaho. Indiana. 
Iowa. Kentucky, I/ruisiana, Maine. Massachusetts. Michigan. Minne¬ 
sota. New Mexico. North Carolina. Ninth I htkota. Oklahoma. Oiegon. 
I’eimsvlvanin, South Carolina. South Dakota. Washington, ami West 
Yliginia. Hy Novcmlier. 15 of those States had repealed their fair 
trade laws. Thev are: Arkansas. California, Colorado. Connect icut, 
Florida, low a. New 1 lainpsliire. New .ler-ev, New Mexico. New Yoi k. 
North Carolina. Ohio. Oregon, Tennessee, and Washington. 


1570 





3818 


CONSCMKK GOODS PRICING AIT 
P.L. !M-I IS 

The principle products fnir t rndcd are stereo components, television 
sets, major appliances. mattresses, toiletries, kitchenware, watches, 
jewelry, glassware. wallpa|>cr$, bicycles, sortie types of clothing, liquor, 
and prescription drugs. 

Liquor will not- Ur affected hy the repeal of the fair trad© laws in 
the same, manner as other products l>eeause the Twenty-First. Amend¬ 
ment to the. Constitution /jives the States liroad /rowers <iver the. sale 
of alcoholic hove rapes. Thus, while re|H>al of the, fair trade laws gen¬ 
erally will prohibit manufacturers from enforeinp resale prices, alco¬ 
hol manufacturers may do suoh in States which pass price fixing 
statutes pursuant to the Twenty-First Amendment. 

Seven days of hearings wore held in the Senate. Six of those days 
wore hearings on the bill proper. Tho seventh concerned an amend¬ 
ment proposed by several newspapers to amend the bill to permit news¬ 
papers to set maximum retail prices. Tire amendment was not brought 
to a rote because of lack of support for it. 

[page 3} 

He/ionl of the fair trade, laws was called for by President Ford, 
consumer prou|>s, the .Justice IVpattmenr, the Federal Trade Com¬ 
mission. the Council on Wage and Price Stability, discount stores and 
smaller business associations. Editorials in newspapers across the coun¬ 
try unanimously favored repeal. 

'Opponents were primarily service-oriented manufacturers who 
claimed retailers would not give adequate service unless they were 
guaranteed a pood margin of profit. However, the manufacturer 
could solve this prohlein by placing a clause in tlie distributorship 
contract requiring the retailer to maintain adequate service. Moreover, 
the manufacturer has the right to select distributors who are likely 
to einphasi/.e service. 

While small business groups did not testifv.a couple submitted state¬ 
ments expressing fear that there would be vicious price-cutting with¬ 
out fair trade. No evidence was presented to indicate that there were 
destructive predatory practices in states which had repealed fair trade 
laws- Nor were thcro bad effects in Canada which repealed its fail- 
trade laws in 1957 or in Great Britain which repealed such laws in 
1965. A study published in 1969 reports small retailers were not d riven 
out of business and predatory price cutting was rare in the 4 years 
following repeal in Great Britain. Similar experiences have been re¬ 
ported in Canada. 

Moreover, statistics gathered by the Library of Congress indicate 
that the absence of fair trade lias not harmed small business. L T s»ng 
l>un and Bradstreet data, the Library of Congress found the 197*2 
firm failure rate in “fair trade” states which have the nonsigner pro¬ 
vision was 35.9 failures per 10,000 firms, in “fair trade” States without 
the nonsigner provision tho rate was 32.2 failures per 10,000 firms, 
while, the failure rate in free trade States averaged 23.3 failures )>or 
10,000 firms—in other words “fair trade” States with fully effective 
laws have a 55 jicrcent higher rate of firm failures than free trade 
states. 

Finally, the. traditional argument that fair trade protects the “mom 
and pop” store from unfair competition is not borne out by statistics. 
Between 1956 and 1972 the rate of growth of small retail stores in free 
trade States (including states which repealed “fair trade” during this 
period) is 32 percent higher than the rate in “fair trade” States. 

1571 



3819 


LEGISLATIVE HISTORY 

P.L 94-145 

Fair trade laws arc in fact legalized |>ri<-c-1ixiii<r. They permit com¬ 
pel in" retailers to have identical prices and thus eliminate, price coin- 
|M-f it ion between retailer's. 

Sindh's by the. Department, of Justice which were cited in a 1969 
Economic. Report of the President, indicate tliat the <-onsumer would bo 
saved $1 .‘2 billion a year by the elimination of the fair trade laws. 
Updated for inflation this fipurc comes to $‘2.1 billion. Another study 
of the. Department of Justice, estimated that fair trade laws increase 
prices on fair traded floods bv 18-27 percent. For example, a set of 
frolf elulis that lists for $220 can lie purchased in non-fair trade areas 
for $136: u $-19 electric shaver for $32: a $1,300 stereo system for $913 
and a $3(10 19-inch color television for $183. 

The repeal of the. fair trade laws does not affect (lie use of stifrecsted 
prices by a mamifacl urer. I fowover. the use of su<rjjcstcd prices in such 
a way as to coerce adherence to them would he illoonl. 

• •****• 

(page 7] 

ADDITIONAL VIEWS OF SENATOR STROM THURMOND 
(K-SC) ON II.R. <1971. A KILL TO REPEAL ENABLING 
LEGISLATION' FOR FAIR TRADE LAWS 

I he ipic-tiou should lie rais<’tl a - to whether it is desirable to pass 
tedeial leoi-,|;ition to lejieal e.\i-tin<r tail trade law-. I nder the 
Milh-t-1 ydimr- Act and McGuire Ad, the rc-pcctivc States arc not 
ictjiuicd to enact lair tia*lc laws and n<ui-i»tiei provisions, but arc 
miucK siren the opportunity to <|o so if they wi-h. Congress has per¬ 
mitted tli«- Si ales to enact fair t rade laws since 1937. almost forty ycais 
afro,ami icinforced that right in 193-2. 

t firmly Udieve in the fulfillnirut of the spirit. as well as the letter, 
of the Constitution of the 1 nited State-* regarding the Tenth Amend¬ 
ment's pieservation of the powers and the lights of the Stales and the 
people. Some years ago, 1 strongly opposed the cllort on the Federal 
let el to impo-e a national fair trade law upon this Country. I lemain 
«omoi iied that the sepaiale State- If allowed to make deei-ions re- 
g.iidnig fail trade lawstothe greatc-t extent po— ible. 

In view of my ri-pect for the iiilcgtity of the indiiidua) Slates. I 
have given ea i cl ill t bought to w het her the Fedot at Government should 
-upplani tin- judgment of the State- in (In— aica. In con-idermg tins 
lo.ilieV. I have been aiuiiv the State- hate not been eomplotelv lll-ni- 
-Jlive to tbe need to make change- m ibi- aiea a- -bown In* (be fact 
l hat a number o[ States in recent wmis hate mox nl to icjieal (heir fair 
I lade law-. 

A ltd e.nofu! thought and anal v-C, I eotielude that T will not di K - 
-cut I lorn the deei-ion of this Committee to favorable icport II If. 
••'.'71. ,\ teview ot the teeoid indicates repeal of (lie fair (ratio laws in 
the \ a I toils >.ta tes should l«* in I he l»e-l i u( in e-t of T he f 'oil 111 I v . I ,ow el 
[him— -Iiou Id be a v a liable to rou-tuoei -. and a -ub-tant nil ntiiu i but toll 
should In- made in I he elbu t to emit I ol ilillal ion. 

(hi I la nee. it appeals t he positive lienetits produced by I bis legi-la- 
(ion -bouid outweigh anv negative rlicets it would bare. 1 have eon- 
eluded l bat. it is le-s object tollable to enact legislation disallow in*: fair 
ti.ide laws than it is for the ( on s'less to eonliniic to sanction pi ice 
hvingthat n —ii It s fiom the exi-tem eof fairtrade laws. 

1572 




3820 


APPENDIX 2: MERGERS 


136 Share of the Market >907 National Petroleum News Fact book Issue 

Shell Spurts to the Top.». 


THE BIG PICTURE 


By liarfcel She** 









• 711 (Shell) 

e >96 (Chevron) 

a 009 (Texaco) 

7 516 (Exxon) 

T 344 (AmoCO) 

$71$ (MoOil) 

sets (Standard) 

4 509 (AtCOI 

4 047 (Maialhon) 

3 $53 (UnoeMI 

3 44? (Son) 

3 414 | Phillips) 






^ | 






c *~ w 7 

\ 

N 






i 


'n 

v 





1 

Toxoco 

/ 

7*06 




l 



7 TSfl 





^ -77... 

_ ^ 



-- 

!/ 




Shell 


T 



5 466 

6 MS 
C 164 




1 / 

\ 




_ 


'/ 


\ 





/ Mobil 



4 7M 





S(*hO*<0 / 

_.. y 

I V 

4 19? 



Sun 


/ 

/ 


mi 

3542 

. ' 


L--"' >4 ‘ 


■* . 

L-'-rr.' 

3oe? 

Ptuikps -., 

_ _ 

1 

Unocal 




>9*0 1W1 1987 1983 >9M 198S I9«6 


Shell Oil Co. spurted lo the (op of the 
pile in 1986 and became the notion's 
No. 1 marketer of gasoline, ft had been 
fourth in 1985 but had been as high as 
second in prior yean. 

Shell, with a 20 4% increase in volume 
last year, vaulted over Chevron. Texaco 
and Exxon—in that order.—in finally nail¬ 
ing down a ink that had been son of a 
will-of-thc-wtsp target through the years 

Probably ihe biggest single thing that 
enabled Shell to fly so high in 1986 was its 
acquisition of 400 service stations in the 
Northeast from Arro during the latter's 
planned withdrawal from eastern market¬ 
places Vmoally all of the stations were 
big volume outlets in prime locations 

Shell said its service scationscnjoycd an 
l lCf> increase in sales in 19R6. the best 
performance record of any of the top com¬ 
panies in that period Next biggest in¬ 
crease. percent age w -1 sc. was Mobil with 
9 9% Bui Mobil’s included both service 
stations and other sales so (his is not nec¬ 
essarily a quid pro quo comparison 

There were two other significant 
changes in the line-up of the top 15 gaso¬ 
line marketing companies Standard Oil 
Co . formerly Sohio, mo sod up one notch 
passing fading Arco in (he process, and 
Marathon was added in the top <5 for ihe 
first time 

In bygone years. Marathon had been 
rather reluctant to release us gasoline vol¬ 
ume details so it w as hard to get a good 0 x 
on where n stood nationally Now, how¬ 
ever, Marathon is ranked ninth based on 
its sates of more than 4-bil(ion gal of 
gasoline in 1986 It also inserts Marathon 
ahs jd of Unoca' 5or and Phillips 

Shell, in taking over first pljcc. 
bunijicd Chevron which had held the lead¬ 


ership since us laic 1983 jcquiMtion ol the 
old Cull Oil Corp At that tune. Chevron 
made an equally spectacular leap up¬ 
wards going from fifth lo ftrst in one leil 
swoop 

What hurl Chevron in 1986 v js the fact 
dial ti had shed 4 000 stations m the 
Southeast in late 1985 and about 5 (KK) 
more in the Northeast in early 1986 Ihe 
southeastern stations were divested as a 
result of a court order in the Guft merger 


and the non hi astern stations were a with 
draw j I from j marketplace where it had 
onlv marginal mierOMS 

Ihe southejMoin stations were sold to 
Standard Oil and those in the northeast to 
Cumberland farms ol Canton Mass . 
the big C-store sham 
Chevron x g isolme volume m 1986 do 
Uinul 3 V? h ood f'hiHips Petroleum 
were ills' onlv not losers last s ^ji the 
Bartlesville OU i lirm reporting a I 2 T 


Gross Galtonage and Relative Shares of 15 Companies—1986-85 

1986 1985 

(tolal sales * 109,IQS. 160,000 gal J (lolal sates - 108,976.519.000 gal) 


% {Add 000) % Chng % {Add 000) %Chng 

Rank Mkt Shr Galtonage 96 vs *85 Rank MM Shr GaNonage 85vs ‘64 


Shell 

— Chevron 
Texaco 

— Exxon 

— Amoco 
•- MoD'J 

Standard 

ArCO 

Maramon 

Unocal 

Sun 

Phillips 

Conoco 

Southland 

Golly 

Total 

I he 9101 s <> 

»>_l( ttj ill -e,lva- 

JUO^iMiisa/i ««rco(iMt. «* 


1 6 ?T»% 

2 8 396 

3 8 009 

4 7S16 

5 7 384 

6 6 716 

7 6019 

8 4609 

9 4 047 

10 3 653 

11 3 442 

12 3414 

13 2 740 

t4 1 B79 

15 l 096 

— 76 6 % 


9 504 600 20 4% 

9 160 020 {3 3) 

8 738 100 1 8 

8 200 800 — 

8 017 590 2 6 

7 327 740 9 9 

5 475 480 3 7 

5 028 210 8 3 

4 41504Q 59 

3 985 800 7 0 

3 755 850 2 9 

3 725 190 {I ?| 

2 909 350 3 7 

2GSOOOO 3 5 

1 195 740 8 3 

83,569.510 5 2% 


4 T2SI*. 

1 e 702 

2 7 885 

3 7 589 

5 7181 

6 6 125 

B 4914 

7 4 266 

9 3 030 

n 3 4?| 

10 3450 

12 3 365 

13 264? 

M l 819 

15 i Oia 

73 1 % 


0 vi .111 I.Hi. i.iUes«* that«ec»ned tjy'l* vaf<Oinpxr».i>y in in, ■■ j.i.vlhT <ci-]'K isi> r*"K|lK"-i> gavR-nr n. ni.ji !Ou>i 
'■} i..le«Ry Sales Some concede |h 11 ihe gasoline vakj.rx.Sin.iy .is >odi- vr<.« amouiils ol till'-'' proDui 

■dwr* hfj-*«.«er l«i l-i co'inpotw^iii IWH.'Wr, CrU-vo-ivi 'Jin 

, il.Hy.M I9H1 u> m • Oils’ laWHsm balance Also mill* 1<Vi4 ami XPDCiljk % the 1,1 <h SOI’m-kluVry „i 


1 694 500 8 0% 

9 473 940 (8 4) 

8 564 800 (8 6| 

8 26 2 870 4 9 

7 818.300 6 0 

6 668 500 12 7 

5 350 1 70 (130) 

4 644 990 (32 ?( 

4 169 760 NA 
3 725 190 2 3 

3 648 540 1115) 

3 063 870 9 6 

2 88? 040 NA 
1 980 QOO NA 
I 103 7DO NA 

79.571 230 <NC) 


arvi tiyllmn 

i 5ui.li as i 


i du'.hq ii n» tekiiOK* 
I 5 j|»‘I'W I'C IlwR 
■j. a 1.1 Cf’nv. oa s to. 






3821 


138 Share of Market 1987 National Petroleum News Factbbok Issue 


Share of 

Market- 

—Top 20 Companies in 1985 

Production ’ 

Crude ol and Hquld oM 


Natural gas 

(Add 000 b/d) 

%<* mt 

Mllllons/CF 

% Of Mkt. 

Exxon 

766.0 

722% 

Chevron 

765.770 

4 66% 

Slandard Oil 

719.7 

6.77 

Exxon 

761.025 

463 

Arco 

647.7 

609 

Texaco 

755,915 

4.60 

Texaco 

6400 

602 

Amoco 

682.185 

4 15 

Chevron 

587.1 

5.52 

Mobil 

603.345 

3 67 

Shell 

530.0 

4.98 

Shea 

601.885 

3.66 

Amoco 

401.0 

3.77 

Arco 

405355 

2.95 

Mobtt 

352.0 

3J1 

Tenneco 

375,692 

229 

Phillips 

3460 

3.25 

Philips 

319.740 

1 95 

Sun 

195.T 

1.83 

Unocal 

287,255 

1 75 

Unocal 

1709 

1.61 

Sun 

239.440 

1 46 

U S Steel 

160-2 

1.51 

DuPont 

230,680 

1 40 

Occidental 

147.6 

1.39 

Ocodenial 

219.365 

1 34 

DuPont 

120.0 

1.13 

Tex Oil A Gas 

198,475 

1 21 

Tenneco 

101.4 

095 

Consolidated Gas 

150.100 

0 91 

City of Long Beach 

81.7 

077 

Ponnzoil 

138.438 

0 84 

Amerada Hess 

72.0 

0.68 

U S Steel 

137.712 

064 

Union Pacific 

67.9 

0.64 

Unton Pacrfc 

115.194 

0 70 

El Paso 

54.7 

0.51 

Enron Corp 

109.309 

0 67 

Sanie Fe 

49.9 

0.47 

El Paso 

107.000 

0 65 

US Total 

10,636.0 

loan, 


16,426.000 

100% 




Proved Reserves 




Crude oil and HquJd o4 





(MHUon/bbl) 

% of MkL 


(Billions/CF) 

% of MM. 

Arco 

2.746.0 

7.55% 

Exxon 

17.962 

9 29% 

Exxon 

2,722.0 

7.49 

Amoco 

9.902 

5 12 

Siandard Oil 

2,647.8 

72S 

Chevron 

7.752 

4 Ot 

Shell 

2.S28.0 

6.95 

Mobil 

7,600 

3 93 

Chevron 

2,068.0 

5.74 

Standard Oil 

7.219 

3 73 

Amoco 

1.782.0 

4.90 

Shell 

7.051 

3 65 

Texaco 

1.766 0 

4 86 

Arco 

6.134 

3 17 

Mobil 

1.036,0 

2 8b 

Texaco 

5.803 

3.00 

Sun 

699.0 

1.92 

Unocal 

4.728 

2 45 

Unocal 

666.0 

1.83 

Phillips 

3.580 

1 85 

US Steel 

586.4 

1.61 

Tenneco 

3.564 

1 04 

Phrlhps 

576 0 

1.58 

Sun 

2,588 

1 34 

Occrdeniaf 

5460 

1-50 

El Paso 

2.426 

1 25 

DuPont 

373.0 

1.03 

Occidental 

2.264 

1 17 

Tenneco 

31B.0 

0 87 

DuPont 

2,1 OS 

l 09 

Amerada Hess 

213.0 

059 

Texas Oif A Gas 

1.836 

0 95 

Union Pacific 

169.5 

0.47 

U S Steel 

1.797 

0 93 

Pennzoil 

156 0 

0.43 

Union Pacific 

1,662 

0 86 

Sante Fe 

131.3 

036 

Panhandle East 

1.465 

0 76 

Tex Oil & Gas 

106 6 

0.29 

Enron Corp 

1.386 

0 72 

U S. Total 

36.360JO 

ioo% 


193,369 

100% 




Refining Capacity 




Capacity 

%of Total 


Runs 

% of Total 


(000 h>d) 

capacity 

(000 b/d) 

capacity 


Chevron 

1.879 2 

12 73% 

Chevron 

1.358 0 

11 25% 

Exxon 

1.200 0 

6 13 

Exxon 

1.054 0 

8 73 

Shell 

1.0196 

691 

Stvfl 

890 0 

7 37 

Amoco 

982 0 

6 65 

Amoco 

839 0 

6 95 

Texaco 

873 2 

592 

Texaco 

830 0 

6 94 

Mobil 

755 0 

5 IT 

Arco 

750 9 

G 22 

Standard Oil 

664 5 

450 

Mobil 

647 0 

536 

Arco 

655 0 

4 44 

Standard 0»J 

597 5 

4 95 

US Sieel 

492 5 

3 34 

Philips 

407 0 

4 03 

Unocal 

474 5 

321 

U S Steel 

402 7 

3 34 

Sun 

443 0 

300 

Sun 

391 7 

3 24 

DuPont 

400 0 

2 71 

UnOC3l 

374 0 

3 10 

Ashland 

346 5 

2 35 

DuPont 

365 0 

3 02 

Phillips 

300 0 

203 

Ashland 

297 5 

2 46 

Southland 

297 0 

201 

Southland 

2190 

1 81 

Koch 

280 0 

1 90 

Union Pacific 

186 2 

i 54 

Coasiai 

261 3 

1 77 

Coastal 

1450 

1 20 

Union Pacific 

2200 

1 49 

Total Petro 

143 4 

1 19 

Kerr McGee 

16* 8 

1 1? 

Diamond Sham 


1 03 

Total Petto 

162 0 

\ 03 

Ket< -McGee 

1220 

1 01 

US Total 

14.761 S 

100% 


12.073 5 

100% 


f>«iro<>.u<n lnsMu»« Mvt'l and fridmlrul OJU lm U S f.i'tiqi «Aa<V<i-, lyso 1W»S 





3822 


ATTACHMENT 3; Exclusive Dealing 


Chevron USA Inc. 

P. O. Bon 1706. Atlanta. GA 30301 


February 12, 1986 


Dear Chevron Jobber: 

It ha$ recently come to our attention that some Chevron jobbers have been 
soliciting the sale of, or have in fact sold, Chevron products to Chevron dealers 
who have direct Supply Contracts with Chevron, The purpose of this letter is 
simply to remind all Chevron branded jobbers that the occurrence of such octivity 
may jeopardize the jobber’s relationship with Chevron, 

While Chevron dealers may purchase non-Chevron motor fuels from others 
(subject to the dealer fulfilling his obligations under his Supply Contract with 
Chevron continuously to offer for sale all grades of Chevron motor fuels), 
Chevron's Supply Contracts with both its two-party and three-party dealers require 
thot the dealer purchase from Chevron oil Chevron motor fuels necessary to serve 
demand for Chevron motor fuels at the dealer's station- Hence, any purchase af 
Chevron motor fuels by any direct supplied Chevron dealer from o Chevron jobber 
Is a hreach of the dealer's Supply Contract with Chevron. 

Any sale by a jobber of Chevron motor fuels to any Chevron dealer who Is 
now a party to a Supply Controct with Chevron constitutes o wrongful interference 
by the jobber with Chevron’s contracts with those dealers, and may result in 
termination of the jobber agreement with Chevron. The Branded Jobber Petroleum 
Products Agreement permits termination by Chevron if "jobber knowingly induces' 
the breach by a third party of a contract between Chevron and the third party." 

If you have any questions whether any particular service station selling 
Chevron gasolines has a direct Supply Contract with Chevron, please contact me. 

Very truly yours, 

CHEVRON U.S.A. INC. 




3823 


Dealers sue Texaco over rack-DTW spread 

Texaco dealers clalai they were told they cbuld "turn 
in the keys" to their stations If they continued trying 
to cash in on an ?8cts differential between Texaco rack 
and DTW prices by buying froa Texaco Jobbers;' 

In an antitrust suit Just filed in Texas, the deal¬ 
ers say they were buying product from Texaco jobbers for 
llcts under Texaco DTW prices when Texaco found out and 
told the Jobbers to stop supplying then. 

Texaco denies the claias. It lets dealers buy from 
Texaco jobbers as long as the product's sold under the 
Texaco flag, says an official. 

Texas Attorney-General Jin Mattox says he'll invest¬ 
igate dealer claims that najors are "manipulating" prices 
by cutting jobber racks so they can dump excess product 
in rural markets, while keeping DTW numbers "artificially 
high" to protect profitable metro markets. 

"Dealers are playing a game —- they're just trying 
to push their market along a bit faster. You don't hear 
any gripes in a rising market when jobber margins almost 
disappear," says one refiner. 

Meantime, Connecticut plans a similar probe after 
consumer group complaints over high pump prices. 

as rack-DTW price flag widens 

Dealers shop for spot market gasoline 

Pressure on major oil companies to cut DTW prices is 
increasing as dealers buy from branded jobbers and shop 
the spot market for cheaper supply. 

"We’ve bought spot market product for our members 
for the last three weeks," says Texas dealer exec, Bill 
Ligon. "We can get it for 15-I6cts under DTW prices from 
branded jobbers. We've bought 500,000 gallons so far." 

Because of the spot shopping sprees by dealers from 
the Gulf to East Coast, majors are cracking down. They're 
threatening to terminate dealers running even if they run 
correctly branded 'gas* through their pumps if the pro¬ 
duct wasn't direct-del 1 vered 'gas,' some dealers claim. 

"As long as dealers do it the right way, there’s no¬ 
thing majors can do about it," says Ligon. He tells his 
1,000 plus dealer members to debrand pumps if they sell 
unbranded product, and to remember to buy at least 50% of 
their 'gas* from their major supplier. 

Though Chevron-Gulf cut DTW lOcts last week and ma¬ 
jors like Amoco, Chevron and Mobil fell 5-10cts, the cuts 
aren't deep enough, say dealers staring at near-30ct job- 
ber-DTW spreads in some markets. 

A random survey by Oil Price Information Service has 
average jobber-DTW spreads looking like this last week: 
Amoco 13.76cts gal Sohio-Gulf 25.10cts 

Chevron 17.23cts gal Marathon l5.56cts 

Exxon 17.73cts gal Mobil 22.97cts 

Getty 21.76cts gal Sunoco 21.35cts 

Amoco seems to be at the low end of the scale be¬ 
cause Its jobber prices in some markets are several cents 
over other racks. But its home-town prices In Chicago 
where it's more competitive show a near-20cts differen- 


l._rt „v<l 

Following figures, from o 
Price In for oat Ion. Service 
show the Jobber rack-DTW 
spreads as of midweek las 
weeK_at randomly-selected 
terminals. Prices shown a 
'for unleaded gasoline and 
do not include dealer 
rebates or Incentives, 
which would cut spreads 
perhaps by a cent or so. 

Amoco Rack DTW 

Atlanta 58.31 7D.OO 
Baltimore 73.75 81.10 

Miami 71.57 79.50 

Chicago 52.27 72.80 

Detroit *19.79 71.10 

Chevron Rack DTW 

Atlanta *9.10 66.20 

Boston 5*1.35 70.90 

Miami 51.05 76.10 

Denver 19.99 53.80 

L.A. 60.00 1 0.50 

Newark 16.70 73-^0 

Sohio/Gulf Rack DTW 

Atlanta 52.37 71 .' 

Mi am 5f.32 79. i 

Baltimore 58.f0 85.' 

Boston 51.82 85 .< 

Columbus, Oh. 18.21 71. 

Mobil Rack DTW 

Atlanta 51.57 69.60 

Boston 55.63 76.90 

Newark 50.88 8 T .00 

Phil a 51.03 75.00 

Chicago 16.21 71.00 

Detroit 18.75 M.90 


Baltimore 59.00 


Chicago 18. 
Detroit 19. 

M arathon 
Chicago 
Columbus, Oh. 
Detroit 
Indianapolis 


Rack DTV 
16.75 £>3-6 

18.20 61.9 

18.00 65.5 


Rack DTW 
52.96 79.00 


tlal between jobber and DTV no-lead prices. 

« for d glimpse of jobber-DTW spreads by brand, 
charts at the side of this page. 


New Haven 56.23 80.82 
Newark 19.69 81.13 
Phtla 50.63 75.60 


see 




3824 


Senator Kennedy. Mr. Foer, welcome. I apologize for not being 
here sooner. I’m not sure whether our Chairman introduced you or 
not, but we’re delighted to have you here. If he hasn’t, I’m delight¬ 
ed to give you one, but otherwise, if he has, why don’t you proceed? 

TESTIMONY OF ALBERT FOER 

Mr. Foer. Thank you. My name is Albert Foer. I'm Chairman of 
the Board of Melart Jewelers, which is a 19-store, specialty retail 
chain operating in the Washington, D.C.-Baltimore area. 

I think I was invited because, as a small businessman, I also 
have a background in antitrust, as a former senior executive of the 
Federal Trade Commission, where I served under five different 
chairmen between 1975 and 1981. 

I’m not going to read my testimony that was prepared, in the in¬ 
terest of time. 

The Chairman. The entire statement will be placed in the 
record. It’s important that it be done. 

Mr. Foer. Thank you. What I’ll do is just focus as directly as I 
can on four or five issues that have not received a great deal of 
attention yet, that are antitrust issues, and that have a tremen¬ 
dous significance for consumers and for small businessmen. 

Let’s start with the retail price maintenance. I’ll go over that 
quickly, because it has been spoken of earlier today. RPM is the 
practice whereby a manufacturer or a supplier binds the retailer to 
sell only at a suggested retail price. 

In today’s economy, the retailer is free to come to the market¬ 
place with his own strategy, which may be a price-oriented strate¬ 
gy; it may be a quality and reputation—credibility strategy; it may 
be, and usually is, some mix in between. The consumer is well 
served by this freedom and flexibility, because the retailer has to 
go out into the marketplace and design a strategy that satisfies the 
consumer. 

What Professor Bork stands for is an end to this freedom. He 
would permit retail price maintenance, on the theory that if the 
manufacturer wants it, it must be efficient, and therefore, in his 
mind, it is good. As a retailer, as a consumer, I very strongly dis¬ 
agree. 

Let me move to Robinson-Patman. I’m not going to try to explain 
that law, which is very difficult to understand in the first place, 
and is not free from some very valid criticism. But I want to say 
this: Businesses have coped with it. Bork says the law is wrong, 
and he would ignore it. But without Robinson-Patman, things 
would change, I think dramatically, in the marketplace. 

In the absence of Robinson-Patman, I, as a retailer with some 
market power—not very much, but some for certain vendors— 
could negotiate lower prices, or other beneficial terms that give me 
an advantage compared to my smaller competitors. And that 
sounds good, until I turn around and realize I’ve also got much 
bigger competitors who could get much better bargains from their 
vendors—my vendors—not because they’re more efficient, but 
simply because they have more leverage—more market power. 

Now, what's at stake here is a shift. Eliminating Robinson- 
Patman would result in concentration. Small businesses would lose 
out, larger businesses would benefit. It’s that type of a shift that 
comes through time after time as we talk about Professor Bork’s— 
Judge Bork’s—attitudes toward the antitrust laws. 



3825 


Take the concept of predation. Bork doesn’t believe in predation. 
Sitting there in the academy he decided that predation probably 
never happens, unless the government participates in it. So he 
would oppose government-assisted predation, and I agree with that; 
but otherwise Bork would eliminate the idea of predation from the 
antitrust laws. 

Small business people know that predation occurs. Big firms 
have advantages over small firms. The rules of the game, which 
Bork has been trying to change—are to give us some kind of basic, 
rough equality of opportunity, so we can get out there and compete 
on the merits. That’s all we want. 

But if a large company, with large resources, utilizes those re¬ 
sources unfairly, there should be some way that the smaller player 
can counter. And what Bork’s saying is, predation does not occur, 
let’s ignore it. The practical effect is, predation will occur all that 
more frequently. 

Finally, let me touch on a procedural matter. Antitrust is a very 
complex area of the law. To bring an antitrust case, whether you’re 
a private plaintiff or whether you’re the government, is an expen¬ 
sive, time-consuming process. 

Small business usually has to depend on its own abilities to bring 
the case, or on the government. The value of antitrust, therefore, 
depends very much on having some clear rules to expedite the case, 
and we call those rules “per se” rules. They may occasionally be 
arbitrary, but they bring efficiency to the system so that it can 
work. 

Judge Bork, in a number of areas, including vertical restraints 
and boycotts, would eliminate per se rules. WThat I want to point 
out to you is that these procedural changes would have very dra¬ 
matic, substantive impact of a predictable nature. Without per se 
rules, the defendant has a major advantage and the dependent is 
most often the larger company. 

Now just to conclude briefly, we read a lot in Mr. Bork’s writings 
about free markets and consumer welfare. What we’re really talk¬ 
ing about are a set of policies that undercut the ability of small 
business to compete, and reduce the options available to consum¬ 
ers. 

The overall impact is far from the congressional intent. It repre¬ 
sents dramatic changes in the rules of the game. And, in my view. 
Professor Bork’s position on antitrust is not antitrust, but trust. 
Trust that the largest corporations will benefit society by growing 
ever larger through mergers and through methods of competition 
that, hitherto, have been considered unfair and illegal. 

[The statement of Mr. Foer follows:] 





3826 


TESTIMONY 

OF 

ALBERT A. FOER 

BEFORE THE U.S. SENATE JUDICIARY COM ITT EE 
REGARDING TIE NOMINATION OF JUDGE ROBERT H. BORK 
"ANTITRUST: THE BORKEAN PARADOX" 
SEPTEMBER 30, 1987 





3827 


ANTITRUST : THE BORKEAN PARADOX 


Mr. Chairman, Senators: 

My name Is Albert A. Foer. I have been invited to share my 
personal views as a small business executive who is familiar with 
antitrust, concerning Judge Bork's likely impact on small business if he 
is confirmed. I am chairman of Melart Jewelers, a 19-store retail 
Jewelry company operating in the national capital region. From 1975 to 
1981, I was a senior antitrust policy planner at the Federal Trade 
Commission. (Additional biographical notes are appended.) 

Judge Bork's special area of expertise is antitrust, and his 
writings, particularly the 1978 classic, The Antitrust Paradox . 3et out 
his views in enormous detail. It is likely that if he were confirmed, 
his views on antitrust would play an especially weighty role by virtue 
of his authority as an expert and his personal persuasiveness. If I 
were head of a Fortune 500 firm, I would look to this future with glee, 
because his conclusions most often coincide with the short term economic 
interests of our largest companies. There are paradoxes here, and I 
will, if I may paraphrase the Judge, title these brief remarks: 
"Antitrust: The Borkean Paradox." 

PARADOX 1. Judicial Restraint Is Judicial Activism . 

It is a paradox that Robert Bork claims to be a believer in 
Judicial restraint when in his field of legal expertise he has so 


88-379 0-89-36 





3828 


patently re-written the legislative history. In Bork's view, the one 
and only goal of antitrust is what he calls "consuner welfare," or more 
generally "efficiency." This Is not the time to recite the full 
legislative history of the various antitrust laws, but the fact Is that 
Congress enacted the antitrust laws with multiple goals in mind, 
including maintaining the autonomy of small economic units; freedom of 
opportunity to compete on the merits; decentralization of power; 
protection of consumer sovereignty; distributional equity; and fairness 
in the marketplace. 1] 

To eliminate all of these goals is, bluntly, to re-write history, 
and to veto the Congressional intent. To postulate a single over-riding 
goal - efficiency - and to draw out an elaborate logical system of law 
and economics from that Initial false assumption is ideologically 
Inspired scholarship at best; IT the same process were applied by a 
Supreme Court Justice, we would witness the parado* of "Judicial 
restraint" legislating. 


U See Foer, "The Political-Economic Nature of Antitrust," 27 St. Louis 
ILL. REV. 331 (1983). Also see Lande, "An Antitrust Activist?" Nat. L.J. 
(Sept 7, 1987). 


PACE 2 



3829 


PARADOX 2 . Welfare" La Big Busi ness Welfare . 

Bork makes "consumer welfare" his touchstone. What needs to be 
understood Is that this language doesn't mean what It says. To quote 
Bork, "Those who continue to buy after a monopoly is formed pay more for 
the same output, and that shifts Income from them to the monopoly and 
its owners, who are also consumers. This Is not dead-weight loss due to 
restriction of output but merely a shift in income between two clauses 
of con3imers. The consumer welfare model, which views consumers as a 
collectivity, does not take this Income effect into account. B 2] I come 
from the school of political science that sees politics as determining 
{in the words of Harold Lasswell) "who gets what when". Judge Bork's 
reinterpretation of antitrust should properly be viewed as a theory that 
may result in greater efficiency for the society as a whole, but surely 
results in a shift of Income and pouer away from the smaller and toward 
the larger economic units. 

PARADOX 3. The Retailer's "Right" to Maintain Prices Is the Retailer's 

Strategic -Sea traiot• 

Bork believes that the long-held antitrust doctrine outlawing 
retail price maintenance should be overruled. In other words, I as a 
retailer, should have the "right" to do business with manufacturers who 
can tell me to charge only a certain price, or sell only on certain 
terms, and can cut off ray supplies if I refuse. Only if retailers get 
together and enforce retail price maintenance on the manufacturer would 
Bork see an antitrust problem. 


2 ] Bork, The Antitrust, Paradox no 0978). 




3830 


Let me say that "getting together" can occur In ways that leave 
no tracks, and that In markets where a retailer Is very strong, it would 
be to his advantage to have RPH, because no one could cut price on him 
and he could extend his dominance. However, in markets where the 
retailer is not strong, he especially needs the ability to control his 
own prices and terms, to compete successfully. Each retailer brings his 
goods to the market in a different way with a different emphasis. For 
some it is all price, for others it is all service, and for most it is a 
mix of service and price. To assure vigorous competition, retailers 
need to be free to select their own strategy and not be bound by the 
manufacturer's strategy. This is not merely a matter of 3mall business' 
freedom, but of the ultimate consumer's ability to set his or her own 
priorities. 

Bork sees that there may be a reasonable Justification for a 
manufacturer to restrain retail prices, e.g. to avoid free-rider 
problems of discounters who do not provide service, and he concludes 
that RPH is therefore Justified. But the conclusion is over-broad, 
since service can be required by contract and the manufacturer is 
unilaterally free not to deal (the Colgate doctrine) with anyone whose 
business practices he dislikes. The consequences of Bork's 
overstatement, which were clear to Congress when it repealed the "fair 
trade laws 1 ', would restrain both retailers and consumers in ways that 
are unnecessary and Improper. 



3831 


Without going Into detail, Bork takes similar positions on other 
vertical restraints such as tie-in sales and market divisions, where the 
result would be the manufacturer's or supplier's dominance over the 
retailer. This shift in power has been of concern to Congress In the 
past, as It should be, If politics is about "who gets what when", 

PARADOX The Free Market Is Fr ee Only to the Established. 

Bork poses as the advocate of an open and free market, but his 
policies would make it more difficult for new entrants to come on the 
scene and grow as competitive forces. One example of this has Just been 
described, in that vertical restraints may make It more difficult for 
newcomers to obtain supplier relationships and to gain market share 
through discount strategies. Another example Is predation. 

Predatory strategies, such as cutting prices below cost In order 
to deter new entrants from a market, probably never happen, says Bork, 
because the predator will have to spend more than he Is likely to 
recoup. Is Bork right? Small and medium size businesses know that 
large companies have more resources to throw Into a fight and that they 
sometimes use these resources to discipline the competition or to 
"teach" potential competitors. To abandon the field by making It a 
point of principle that predation (other than predation by use of 
governmental processes) can't happen and therefore should not be of 
concern to antitrust enforcers makes It likely that predation actually 


will occur more often 





3832 


PARADOX 5. "Winking" At Hoblnso n-Patman Is To Wink At The 
Destruction Of Competition . 

Robert Bork has been quoted as saying, "In the Roblnson-Patman 
Act, when Congress said It wanted to forbid price discrimination to 
protect competition, they said it with a wink. I don't think it's a 
Judge's Job to enforce winks."3J I don't know whether he actually said 
that, but Judge Bork's attitude toward Roblnson-Patman is clear: "The 
law ought not to attempt to deal with the subject."4] 

I will not try to defend all aspects of Roblnson-Patman; one of 
its problems as a law is that it is extremely difficult to understand. 

As a middle-sized retailer, my sense is that Roblnson-Patman sometimes 
keeps me from getting the lowest price or other special terms that I 
might obtain by full use of my market power; but it also keeps my much 
larger competitors from gaining a great edge over me. If 
Robinson-Patman were relegated to the Junkyard of history, I would be in 
a position to gain market share over my smaller competitors, and some of 
them would disappear. At the same time, my larger competitors would use 
their market power to buy cheaper than me and would be able to undercut 
me and eventually remove me from the market. Roblnsor.-Patman may not 
always make sense, but in practice it helps maintain a rough equality of 
opportunity, so that retailers can compete with each other on the 
merits. The consumer benefits because in 

3] Cited by N.Y. Times, 3 / 8 / 85 , quoting Bork at Antitrust Conference. 

43 Bork, The Antitrust Paradox 401 (1978). 


PAGE 6 



3833 


the long run there are more competing retailers to choose among. A 
Supreme Court Justice who Is dedicated to the overthrow of 
Roblnson-Patman will have a dramatic negative Impact on our current 
arrangements of doing business, 

PARADOX 6. "Mere" Procedures Determine Who Wins . 

Antitrust cases often turn on whether the plaintiff must make his 
case under per ag rules or under the "rule of reason." Judge Bork 
challenges traditional approaches by arguing, for example, that vertical 
restraints should be cec S£ legal Instead of Illegal and that boycotts 
or agreements among competitors to refuse to deal should no longer be 
BCC a£ Illegal. In The Antitrust Paradox , Bork argues, "No Court Is 
constitutionally responsible for the legislature's Intelligence, only 
for Its own. So It Is with specific antitrust laws. Courts that know 
better ought not accept delegations to make rules unrelated to reality 
and which, therefore, they know to be utterly arbitrary."51 Without 
stopping to argue the merits of Bork's proposed changes to the 
procedural rules, I Just want to point out that as a generality If you 
apply rule of reason the defendant wins, and In antitrust the defendant 
Is usually the larger economic entity. Rule of reason means a case will 
be long and expensive, and there will almost always be some colorably 
reasonable explanations for what the defendant has done. The shift in 
procedural rule becomes a shift In substantive outcome. Judge Bork's 
eagerness to make these shifts 13 another reason why those who believe 
In the 


5] Bork, The Antitrust Paradox 410 (1978). 




3834 


Importance of small businesses and medium size businesses should be 
afraid of Justice Bork. 

PARADOX 7. There Can Be Adequate Competition Without Competitors . 

Competition, to the unsophisticated eye, Increases, at least up 
to a point, when there are more competitors, and decreases when there 
are fewer. Robert Bork, however, sees very little need for competitors 
as a precondition of competition. Of course what he is really after Is 
the most efficiency, not the most competitive market. He says, In The 
Antitrust Paradox . ",.,[H]e are In an area of uncertainty when we ask 
whether mergers that would concentrate a market to only two firms of 
roughly equal size should be prohibited. Hy guess Is that they should 
not and, therefore, that mergers up to 60 or 70 percent of the market 
should be permitted..."6] Although Bork backs down frcm this somewhat 
In later discussion, It Is clear that he would allow horizontal mergers 
which would result In substantial market concentration. He Is virtually 
unconcerned about vertical mergers and would never Interfere with a 
conglomerate merger. Basically, Bork's posture Is not one of antitrust, 
but of trust — In the ability of larger corporations to benefit the 
society by growing ever larger through acquisition and merger. 

Why should this be of concern? Here 1 3 one of the many possible 
answers: As the number and variety of Independent decision centers 
decreases, the amount of opportunity for those not already within the 


6] Bork, The Antitrust Paradox 221 (1978). 


PACE 8 



3835 


established centers of power declines. As a retailer, I would prefer to 
buy my supplies front a fragmented Industry rather than a highly 
concentrated industry, because there are more opportunities to make 
deals, and I can ultimately offer a better deal to my customers. While 
Bork teaches that fewer competitors may be more efficient, reality 
teaches that unless we have a policy which offers 3ome degree of 
protection to competitors who are reasonably efficient but relatively 
small, there will be precious little competition in the marketplace. 
Competition without competitors is the final paradox in the Borkean 
world of antitrust. 

Conclusion 

In this brief review of Judge Bork’s approach to antitrust, I've 
tried to point out ways in which he paradoxically speaks of free markets 
and the welfare of consumers but in fact would undercut the ability of 
small companies to flourish, and would reduce consumer options. I do 
not mean to suggest that everything Judge Bork has written on antitrust 
is flawed or foolish, because it certainly is not, but the overall 
Impact of his approach is far from the original and repeated expressions 
of Congressional intent, and the Impact on our institutions of commerce 
could be both dramatic and adverse to the Interests of smaller 
businesses and consumers. 





3836 


ALBERT A. FOER 


Albert A. Foer Is Chairman of the Board of Helart Jewelers, Inc., 
a 19-store specialty retailer doing business in Karyland, Virginia, and 
the District of Columbia. He Is on the Board of Directors of the 
Jewelers of America, the Jewelry Industry Council, and the Diamond 
Council of America, and on the Steering Committee of the Greater 
Washington Board of Trade's Retail Bureau; he testifies today in his 
personal status as a small business person who Is particularly familiar 
with the antitrust laws. 

Hr. Foer holds degrees from Brandeis University (A.B. 1966), 
Washington University (H.A., political science, 1967), and the 
University of Chicago (J.D., 1973), where he was Associate Editor of the 
University of Chicago Law Review. 

Hr. Foer practiced law at two Washington law firms and was a 
Senior Executive at the Federal Trade CoBOilsslon, serving under five 
different Chairmen (of both political parties) from 1975 to 1981. His 
highest rank was Acting Deputy Director of the Bureau of Competition. 

He also served as a Commissioner on the National Cormlsslon on 
Electronic Fund Transfers, and represented the FTC on the President's 
Antitrust Study Coomlsslon In 1978. Hr. Foer Joined Helart Jewelers 
nearly five years ago. 



3837 


Senator Kennedy. We want to thank you very much for your 
presentation. It’s an important presentation because I think what 
we’ve heard from the panel is some real-life experience, in terms of 
how antitrust law is going to reflect on the consumers of this coun¬ 
try. 

I know this has been an issue of considerable concern. 

I want to thank you very much for joining with us today, and I’ll 
recognize- 

Senator Metzenbaum. Mr. Chairman, I am very interested in 
what these witnesses said, but I also recognize there are five other 
witnesses, two of whom are former Attorneys General, and I would 
be willing, if everybody else would be agreeable, to waive any ques¬ 
tions in connection with this panel, and see if we couldn’t move the 
hearing along. 

Senator Simpson. Mr. Chairman, on behalf of our side, I think I 
speak for our leader, Senator Thurmond, that would be perfectly 
appropriate if we would have the opportunity to submit some ques¬ 
tions in writing. 

The Chairman. Yes, with that objection there would be no prob¬ 
lem. 

Gentlemen, it’s a long way to come, it’s an important matter, we 
appreciate it, and please—and I mean this sincerely—do not read 
the lack of time as a lack of interest. I suspect you will find your¬ 
selves quoted on the Senate floor before this is over, and frequent¬ 
ly, I suspect. But I truly appreciate your time and your effort. 
Thank you very, very much. 

Senator Metzenbaum. Thank you very much. 

The Chairman. Now, we have one very distinguished—former 
Attorney General to testify next—Herbert Brownell, who was At¬ 
torney General for General Eisenhower. Would you please come 
forward, General? 

He is counsel to the New York City firm of Lord, Day and Lord, 
and has practiced law for more years than I have been around, and 
a man of immense integrity and standing. 

General Saxbe had hoped to be here with you, General Brownell, 
but he could not be here, I’m told. His statement will be placed in 
the record, but we welcome you and are delighted. I understand 
you had to—correct me if I’m wrong—but you had to come back 
from Europe for this, and it’s a great testament to the nominee, 
and the committee’s flattered to have you here. 

Would you mind standing to be sworn? 

Do you swear that the testimony that you are about to give is the 
truth, the whole truth, and nothing but the truth, so help you God? 

Mr. Brownell. I do. 

The Chairman. Thank you. 

Senator Kennedy. Mr. Chairman, could I just add a word of wel¬ 
come to General Brownell. We recognize that his career continues 
in public service. He serves on the Bicentennial Commission on the 
Constitution, which I and several other members of our commit¬ 
tee—Senator Thurmond, Senator DeConcini—also serve on, and it 
is a pleasure to work on that Commission with General Brownell, 
and I, too, want to join in welcoming you here. 





3838 


TESTIMONY OF HERBERT BROWNELL 

Mr. Brownell. Thank you. 

The Chairman. Thank you, General, and please proceed. 

Mr. Brownell. I have a very brief statement, Mr. Chairman and 
members of the committee, which I could read, if that’s agreeable. 

The Chairman. Please. 

Mr. Brownell. Because I do appreciate the opportunity to testify 
before this committee in favor of the confirmation of the appoint¬ 
ment of Judge Bork to be an Associate Justice of the Supreme 
Court. 

Judge Bork, in my opinion, is highly qualified to hold the posi¬ 
tion for which he has been nominated by President Reagan. He 
possesses in full measure the high standards of personal integrity, 
character, of judicial temperament, broad professional, legal and 
judicial competence. 

These essential qualifications appear to me to be conceded by all, 
both proponents and opponents of confirmation. The sole objection 
to Judge Bork’s confirmation so far as I am aware is to his ideolo¬ 
gy- 

While I was Attorney General under President Eisenhower, as 
you mentioned, four persons were nominated to the Supreme Court 
by the President on my recommendation among others. They were 
confirmed after a favorable vote by this committee. They were Earl 
Warren, John Marshall Harlan, William Brennan and Charles 
Whittaker. 

I think the members of this committee will readily recognize that 
these persons represented great diversity of ideology. President Ei¬ 
senhower believed and acted upon the belief that the Court’s mem¬ 
bership should represent diverse ideological points of view. 

In order to maintain public confidence in the Court which is an 
unelected body, it seems to me it is of great importance to have di¬ 
verse points of view represented. If the Senate should confirm only 
nominees with an ideology that conforms to the Senate’s prevailing 
ideology, it would be a signal that the Senate wanted the Court to 
decide constitutional issues not on an independent judicial basis 
but on a political ideological basis. 

Such action by the Senate, if carried to a logical conclusion, 
would, in my opinion, violate the separation of powers doctrine em¬ 
bedded in the Constitution. Your predecessors on this committee 
led the nation in rejecting the court packing plan of yesteryear 
which was aimed at requiring ideological conformity on the Court. 
Well, I believe that the committee should not now do indirectly 
what it then refused to do directly. 

So since Judge Bork meets the basic qualifications of Court mem¬ 
bership, that is, character, judicial temperament and legal and pro¬ 
fessional skills and experience, I urge this committee to act favor¬ 
ably on his nomination. 

[Telegram and prepared statement follows:] 



3839 


TEXT OF A TELEGRAM FROM THE HONORABLE HERBERT BROWNELL, FORMER 
ATTORNEY GENERAL OF THE UNITED STATES, TO SENATOR JOSEPH BIDEN 

September 20, 1987 

Senator Joseph Biden 
Chairman 

Senate Judiciary Committee 
Washington, D.C. 

I have requested the opportunity to testify for Judge Bork and am 
scheduled to appear before your Committee on Monday, September 
21st, along with other former Attorneys General. Unfortunately, 

1 must be in Geneva, Switzerland, on that date on private legal 
business, and am arranging to have my written statement submitted 
to you and the Committee. I will appreciate it if you would have 
the statement read and filed with the record of the Committee's 
confirmation hearings. 


Herbert Brownell 




3840 


STATEMENT BY 

THE HONORABLE HERBERT BROWNELL 
FORMER ATTORNEY GENERAL OF THE UNITED STATES 
IN SUPPORT OF THE NOMINATION OF 
JUDGE ROBERT BORK 
TO BE AN ASSOCIATE JUSTICE 
OF THE SUPREME COURT OF THE UNITED STATES 


I appreciate the opportunity to testify before the Senate 
Judiciary Committee in favor of the confirmation of the 
appointment of Judge Bork as Associate Justice of the United 
States Supreme Court. 

Judge Bork, in my opinion, is highly qualified to hold the 
position for which he has been nominated by President Reagan. He 
possesses in full measure the high standards of personal 
integrity and character, of judicial temperament, and of broad 
professional, legal and judicial competence. These essential 
qualifications appear to be conceded by all—both proponents and 
opponents of confirmation. 

The sole objection to Judge Bork*s confirmation, so far as I 
am aware, is to his ideology. 

While I was Attorney General under President Eisenhower, 
four persons were nominated to the Supreme Court by the President 
on my recommendation, among others. They were confirmed after 
favorable vote by this Committee. They were: Earl Warren, John 
Marshall Harlan, William Brennan, and Charles Whittaker. 

Members of this Committee will readily recognize that these 
persons represented great diversity of ideology. President 
Eisenhower believed, and acted upon the belief, that the Court’s 
membership should represent diverse ideological points of view. 

In order to maintain public confidence in the Court—an unelected 
body—it is of great importance to have diverse points of view 
represented. If the Senate should confirm only nominees with an 
ideology that conforms to the Senate's prevailing ideology, it 
would be a signal that the Senate wanted the Court to decide 
Constitutional issues, not on an independent, judicial basis, but 
on a political, ideological basis. 

Such action by the Senate, carried to a logical conclusion, 
would in my opinion violate the separation of powers doctrine 
imbedded in the Constitution. Your predecessors on this 
Committee led the Nation in rejecting the "Court packing" plan of 
yesteryear which was aimed at requiring ideological conformity on 
the Court. The Committee should not now do indirectly what it 
then refused to do directly. 

Since Judge Bork meets the basic qualifications of Court 
membership—character, judicial temperament, and legal and 
judicial skills and experience—I urge this Committee to act 
favorably on his nomination. 


Herbert Brownell 



3841 


The Chairman. Thank you very much, General. It really is an 
honor to have you here. 

Mr. Brownell. Thank you, sir. 

The Chairman. It’s my first opportunity to meet you, and at that 
it’s across a table. I have enormous respect for you, and I am really 
flattered you’d take the time to come. 

I’m going to refrain from questions, but before I yield, does my 
colleague from Ohio have a question? 

Senator Metzenbaum. I have a tremendous amount of respect 
for the distinguished public career of Mr. Brownell, and I don’t see 
that I’m going to gain any browny points by asking questions of 
him, and my opinion is that this hearing is winding down. I think 
the whole committee ought to waive their questions and indicate 
their gratitude for your appearance. 

Mr. Brownell. That’s very kind. 

The Chairman. Senator Thurmond. 

Senator Thurmond. Mr. Brownell, glad to see you again. 

Mr. Brownell. Thank you, Senator. 

Senator Thurmond. The only question I have is this. You know 
Judge Bork personally, don’t you? 

Mr. Brownell. Yes, I do. 

Senator Thurmond. How long have you known him? 

Mr. Brownell. I have known him for about 7 or 8 years. I met 
with him in private practice. 

Senator Thurmond. From your knowledge of him, does he have 
the character and integrity and the honor to be a good Supreme 
Court Justice? 

Mr. Brownell. Yes, without question in my opinion. 

Senator Thurmond. Does he have the judicial temperament to be 
a good Supreme Court Justice? 

Mr. Brownell. Yes, I think you’ve evidenced that in this com¬ 
mittee in your questioning of him. 

Senator Thurmond. Does he have the professional competence 
and qualifications from a scholastic standpoint to be a good Su¬ 
preme Court Justice? 

Mr. Brownell. Very superior qualifications in that regard. 

Senator Thurmond. Do you know of any reason why he should 
not be confirmed? 

Mr. Brownell. I do not. 

Senator Thurmond. Some evidence has come out here that he 
was against blacks and against women and so forth and so on. 
We’ve offered evidence to the contrary, but they keep on saying 
that, and he himself said that he would be fair to blacks and fair to 
women and so forth. He’s answered those himself. 

It seems to me that there are two things that should count most. 
One is his own testimony, and anyone who heard his own testimo¬ 
ny seems to me to be convinced, and the other is his record on the 
circuit court. 

That’s the juice in the coconut, the decisions he's handled. He’s 
written 150 decisions on that court. He’s participated in 400 deci¬ 
sions, and none of those decisions have been overruled by the Su¬ 
preme Court. 



3842 


Chief Justice Burger said that if that man is an extremist, he’s 
an extremist. He says he’s in the mainstream as far as he can tell. 
Lloyd Culter made a similar statement about Judge Bork. 

If you were a member of the Senate, would you vote to confirm 
him or not? 

Mr. Brownell. Yes, I would. 

Senator Thurmond. Thank you very much. 

The Chairman. The Senator from Wyoming. 

Senator Simpson. Mr. Brownell, it's nice to see you, sir. 

Mr. Brownell. Thank you. 

Senator Simpson. And I bring the special greetings of my father, 
Milward Simpson. I know of your friendship with him and he is 90 
years old, and he said I see that Herb Brownell is going to testify. 
He said give him my fond regards and deepest respect, and from 
my mother, too. 

Mr. Brownell. That’s very nice to hear. 

Senator Simpson. He shared some lovely times with you. 

Mr. Brownell. Give him my best. 

Senator Simpson. I shall. 

I have no questions, Mr. Chairman. But a man of this stature 
and of these credentials in the United States should be listened to 
by all of us, an extraordinary record of public service, Herb Brow¬ 
nell. I just hope that we’re listening and there isn’t anything here 
that has anything to do with turning back the clock and chilling 
effect and all these things and some of the really ragged things 
we’ve heard about this man, and I’m sure you’ve been watching or 
listening to these proceedings and just this single question: 

What is your feeling about this assault upon this remarkable 
man? 

Mr. Brownell. I have not listened so much to others opinions in 
this regard because I’ve been out of the country part of the time 
that the hearings were going on, but I am personally satisfied that 
he is a man of high character, possess the requisite judicial tem¬ 
perament and among the people who have come before this com¬ 
mittee for confirmation to the Supreme Court over the years none 
has had a better and more extensive experience as a lawyer and 
law teacher and as a federal judge. 

Senator Simpson. And you’ve seen a few of them in your time, 
haven’t you? 

Mr. Brownell. Yes, I’m an old customer at this committee. I’ve 
been up here so many times discussing the confirmation of federal 
judges, including, as I said, in my prepared statement four nomi¬ 
nees for the Supreme Court. 

Senator Simpson. I thank you, sir. It’s nice to see you. 

The Chairman. Thank you. 

The Senator from Iowa. 

Senator Grassley. Mr. Chairman, I don’t have any questions 
either, but I think we ought to take note of the fact besides this 
outstanding former Attorney General we’ve had five or six other 
former Attorney Generals, and I think all but one have spoken 
verv favorably of Judge Bork. Also remember most of them have 
had, as Attorney General Brownell has, involvement with selection 
of people for the Supreme Court. 



3843 


It seems to me like this committee ought to give considerable 
weight to the judgment of these people who have been the highest 
legal officer of the executive branch of government. All have 
spoken favorably, except one, for Judge Bork. 

The Chairman. Thank you very much. General, thanks for 
taking so much time. I appreciate it very much. 

Our next and last but not least panel is made up of three wit¬ 
nesses who are representatives of the law enforcement community. 
First is Howard L. Johnson, President of the National Organization 
of Black Law Enforcement Executives and is a public safety direc¬ 
tor of Highland Park, Michigan. This organization consists of 1,675 
members who hold management or command level positions to law 
enforcement agencies across the country and recently gave testimo¬ 
ny in support of William Sessions to be the new FBI director. 

Second will be Ronald Hampton, a 15-year veteran of the Wash¬ 
ington, D.C., Police. He represents the National Black Police Offi¬ 
cers Association. His organization represents the 30,000 black po¬ 
licemen and women and is nationwide and has been in existence 
since 1946. 

Third is Mr, Robert Kliesmet. He was a Milwaukee police officer 
for nearly 30 years. A leader of the Milwaukee Police Association 
for 15 years and is now president of the International Union of 
Police Associations, AFL-CIO. The International Union of Police 
Associations represents over 20,000 police officers from depart¬ 
ments throughout the country. 

While we are waiting for the other two members of your panel to 
come, Mr. Kliesmet, I am going to read into the record a letter ad¬ 
dressed to me dated September 30, 1987, from our former colleague 
John H. Buchanan, who now serves as chairman of the board of 
directors of People for the American Way. 

“Dear Mr. Chairman.” 

‘T’ve read with interest the allegations against People for the 
American Way entered into the record of the Bork hearings yester¬ 
day entitled 67 Flaws of the Bork Ad. Senator Hatch’s accusations 
contain at least 68 flaws. He is wrong in his 67 interpretations and 
charges pertaining to our ad. He’s even more wrong and inaccurate 
in repeatedly using the word ‘falsehood’ in describing portrayals of 
Judge Bork which is based on substantial documentary evidence,” 
et cetera. 

I will not read the remainder into the record. Just the conclud¬ 
ing paragraph. 

“Mr. Chairman, as a Republican, I do not consider this a parti¬ 
san matter but one in which the constitutional rights and liberties 
of American citizens are and must be the first consideration of all 
who share in this historic decision.” 

Sincerely John H. Buchanan, Chairman of the Board. 

Second, I’d like to enter into the record and ask unanimous con¬ 
sent that a letter which I will not read from the University of Chi¬ 
cago professor as to why Judge Bork is not like Hugo Black in his 
opinion. Professor Schulhoffer. The letter is addressed to the Chair¬ 
man, dated September 28, and I ask unanimous consent that both 
these be placed in the record. 

[Letter follows:] 



3844 


THE UNIVERSITY OF CHICAGO 
THE LAW SCHOOL 
r r t i o>T M,rii vreifi 
i HICAC.O * III IN O 11 


September 28, 1987 


Senator Joseph Biden 
Chairman, Senate Judiciary Committee 
224 Dirksen Senate Office Building 
Washington, DC 20510 

Attention: Diana Huffman 

Dear Senator Biden, 

As a former law clerk (1967-68 and 1968-69) to Justice Hugo 
L. Black, I write to express my deep concern over the attempt by 
some witnesses before your committee to associate Justice Black's 
judicial philosophy with that of Judge Robert Bork. 

Justice Black joined many of the decisions that Judge Bork 
has made a point to criticize. E.g., Shelley v. Kramer, 334 U.S. 

1 (1948); Skinner v. Oklahoma, 316 U.S. 535 (1942). But more 
significant are the broader theories of interpretation that have 
earned Justice Black an enduring place in constitutional history. 

Justice Black's most important contributions to 
constitutional law are located in the area of free speech. Of 
all the Justices to sit on the Court, Justice Black remains the 
preeminent advocate of a generous and unqualified interpretation 
of the first amendment's guarantee of freedom of speech. Judge 
Bork has espoused a shifting but consistently narrow view of 
first amendment protection. Thus, in the area at the heart of 
Justice Black's constitutional legacy, his views and those of 
Judge Bork are diametrically opposed. 

In testimony before your committee on September 22, an 
important question was raised about Justice Black's conception of 
the "liberty" protected by the due process clause. I understand 
that Professor Laurence Tribe testified that no Justice in the 
Court's history had consistently adhered to a view of "liberty" 
as narrow as that held by Judge Bork. But Professor Michael 
McConnell appeared to imply that the views of Justice Black and 
Judge Bork on this issue were similar. McConnell's comment could 
leave your Committee with a serious misimpression about Justice 
Black's position. Please permit me to set the record straight. 

In several of his opinions Justice Black did express the 
view that "liberty" within the meaning of the due process clause 
is restricted to rights expressly enumerated in the Bill of 



3845 


Senator Joseph Biden -2- September 28, 1987 


Rights or elsewhere in the Constitution. See, e.g., Griswold v. 
Connecticut, 381 U.S. 479, 507 (1965)(dissenting); Adamson V. 
California, 332 U.S. 46, 68 (dissenting). But these opinions do 
not tell the whole story. First, Justice Black often joined 
opinions that recognized fundamental liberties not explicitly 
enumerated. Second, even the restrictive theory that Justice 
Black sometimes espoused is far different from Judge Bork's 
position, because of the broader context of constitutional 
doctrine to which Justice Black passionately subscribed. 

First, Justice Black often recognized basic rights not 
expressly mentioned in the constitutional text. For example, in 
Edwards v. California, 314 U.S. 160, 177 (1941), he joined 
Justice Douglas in a concurring opinion arguing that a state 
statute violated a citizen's inherent right to move freely from 
state to state. The opinion explicitly advocated a thesis of 
non-enumerated rights. Justice Black joined or wrote other 
opinions that extend constitutional protection to such non- 
enumerated liberties as the right to foreign travel, the right to 
practice a profession, the right to a private realm of family 
life (including the custody, care and nurture of children), and 
the right of marriage and procreation. These opinions, too 
numerous to describe in the body of this letter, are discussed in 
the Appendix I have attached. 

The second point is even more important. The restrictive 
approach to non-enumerated liberties that Justice Black sometimes 
urged was possible for him only because he gave a very generous 
reading to the rights that are enumerated. Where others would 
find protection for personal liberties in a general right to 
privacy or in the inherent "civil rights of man," Justice Black 
often could find comparable protection in his understanding of 
the Bill of Rights, and particularly the first amendment’s free 
speech guarantee. Thus, the right to join with others for 
peaceful purposes, the right to maintain the privacy of 
organization membership lists and even the right to organize a 
program of prepaid group legal services were held by Justice 
Black to be aspects of the freedom of association that he found 
implicit in the free speech guarantee. Similarly, Justice Black 
was willing to recognize a constitutional right not to be exposed 
as an unwilling listener to a radio news program, but he based 
his analysis not on a right to "privacy” but (departing from the 
literal text) on the listener's right to free speech . 2 

Justice Black's judicial philosophy can be understood only 


1. E.g., NAACP v. Alabama, 357 U.S. 449, 462 (1958) 
(opinion of the Court joined by Black, J.); United Mine Workers 
v. Illinois State Bar Ass'n, 389 U.S. 217 (1967). 

2. Public Utilities Comrn'n v. Poliak, 343 U.S. 451, 466 
(1952) (separate opinion). 



3846 


Senator Joseph Biden 


September 28, 1987 


against the background of his life-long battle against powerful, 
organized interests. Even at the -time of his nomination to the 
Court, Justice Black's commitment to protecting the economically 
disadvantaged was clear; it had been the hallmark of his Senate 
career. His recognition of the Court's essential role in 
safeguarding minorities and the underprivileged was at all times 
a driving force behind his theories of interpretation and his 
sensibility as a judge. When it became clear that the Court 
would never accept his theory of "total incorporation," for 
example. Justice Black was explicit in stressing that literal 
adherence to text or history were to him less important than 
pragmatic realism in pursuit of the Constitution's larger plan 
for the protection of fundamental rights. Concurring in Duncan v. 
Louisiana, 391 U.S. 145, 171 (1968), Justice Black wrote that 
although the selective incorporation doctrine was "perhaps less 
historically supportable" than total incorporation, he 
nonetheless supported it because “most importantly for me, the 
selective incorporation process has the virtue of having already 
worked to make most of the Bill of Rights' protections applicable 
to the States." 


I am sure that many of Justice Black’s former law clerks 
share my concern that superficial comparisons of his philosophy 
with that of Judge Bork do a great disservice to the Justice's 
memory. The record makes clear that in their theories of 
interpretation and in their guiding commitments these men differ 
in the most fundamental ways. 

I would be grateful if you would make copies of my letter 
available to the other members of the Senate Judiciary Committee. 


Sincerely, 

(A 

Stephen J. Sehulhofer 
Frank and Bernice J. Greenberg 
Professor of Law and 
Director of the Center for Studies 
in Criminal Justice 




3847 


Senator Joseph Biden -4- 


September 28, 1987 


APPENDIX 


Selected opinions, joined by Justice Hugo Black, in which 
constitutional protection tor non-enumerated rights is 
recognized: 

EDWARDS v. CALIFORNIA, 314 U.S. 160, 177 (1941). Justice Black 
joined a concurring opinion in which Justice Douglas argued that 
"the right to move freely from state to state," though not 
expressly recognized by the constitution, is implicitly protected 
by the privileges and immunities clause of the Fourteenth 
Amendment. The opinion stated: "(T]his right is not 
specifically granted by the Constitution, yet before the 
Fourteenth Amendment it was recognized as a right fundamental to 
the national character of our Federal government. . . . That the 
right was implied did not make it any the less ’guaranteed' by 
the Constitution." 314 U.S. at 178. 

SKINNER v. OKLAHOMA, 316 U.S. S3S (1942). Justice Black joined 
the opinion of the Court holding that a law permitting 
sterilization of certain habitual criminals violated the equal 
protection clause of the Fourteenth Amendment. Central to the 
Court's analysis was the decision to subject the law to "strict 
scrutiny” because it affected "one of the basic civil rights of 
man. Marriage and procreation are fundamental to the very 
existence of the human race." 316 U.S. at 641. 

PRINCE v. MASSACHUSETTS, 321 U.S. 1S8 (1944). Justice Black 
joined the opinion of the Court which, while upholding a 
challenged state regulation, based its analysis on the 
proposition that "the custody, care and nurture of the child 
reside first in the parents, whose primary function and freedom 
include preparation for obligations the state can neither supply 
nor hinder. . . . And it is in recognition of this that these 
decisions have respected the private realm of family life which 
the state cannot enter." 321 U.S. at 166. 

BOLLING V. SHARPE, 347 U.S. 497 (1954). Justice Black joined the 
opinion of the Court holding public school segregation to violate 
the due process clause of the Fifth Amendment. The Court said 
that "liberty" under tne due process clause 'is not confined to 
freedom from bodily constraint. . . (Itl extends to the full 
range of conduct which the individual is free to pursue, and it 
cannot be restricted except for a proDer governmental objective." 
347 U.S. at 499-500. 

SCHWARE v. 30ARD OF BAR EXAMINERS, 353 U.S. 232 (1957). Justice 
Black wrote the opinion cf the Court finding a denial of due 
process in the state's refusal to admit tne petitioner to 
practice at the bar. Justice Black reasoned that whether the 
practice of an occupation were deemed a "rignt" or a "privilege,” 
the state could not impose qualifications that did not have a 
"rational connection with the applicant's fitness," and could net 





3848 


Senator Joseph Biden 


-5- 


September 28, 1987 


treat the opportunity to practice as merely "a matter of the 
State’s grace.” 3S3 U.S. at 239. 

KENT v. DULLES, 357 U.S. 116 (1958). Justice Black joined the 
opinion of the Court holding that the right to foreign travel "is 
part of the 'liberty' of which the citizen cannot be deprived 
without due process of law under the Fifth Amendment." 357 U.S. 
at 125. (Subsequently, in Aptheker v. Secretary of State, 378 
U.S. 500, 518 (1964)(concur ring opinion). Justice Black 
criticized the theory of "liberty" to which he had subscribed in 
Kent.] 

LOVING v. VIRGINIA, 388 U.S. 1 (1967). Justice Black joined the 
opinion of the Court which struck down the state’s law 
prohibiting interracial marriage. The Court's opinion held not 
only that the law violated the equal protection clause but also 
that it deprived the petitioners of "liberty'' within the meaning 
of the due process clause. In the latter holding, the Court 
rested on the proposition that “(t]he freedom to marry has long 
been recognized as one of the vital personal rights essential to 
the orderly pursuit of happiness by free men." 388 U.S. at 12. 



3849 


The Chairman. Mr. Kliesmet, we will not wait for your col¬ 
leagues. We will begin with you if that’s all right, unless there is 
objection from my colleagues. 

Mr. Kliesmet, welcome. We are delighted to have you here, and I 
mean that sincerely, and I appreciate your willingness to wait. 

Let me ask you all to stand to be sworn, please. 

Do you swear the testimony you are about to give is the truth, 
the whole truth and nothing but the truth so help you God? 

Mr. Johnson. I do. 

Mr. Kliesmet. I do. 

Mr. Hampton. I do. 



3850 


TESTIMONY OF A PANEL CONSISTING OF HAROLD JOHNSON, 
ROBERT KLIESMET, AND RONALD HAMPTON 

Mr. Kliesmet. Thank you, Mr. Chairman and members of the 
committee. I am Robert Kliesmet, the president of the Internation¬ 
al Union of Police Associations, AFL-CIO. Mr. Michael Leibig, our 
general counsel and adjunct professor in public employment law 
and labor policy at the Georgetown University Law Center is with 
me. 

I was a police officer in the Milwaukee police department from 
1955 to 1984, the last 15 years of which I served as its union leader. 
I, like many of you, am pulled both ways by Judge Bork’s nomina¬ 
tion. Let me explain that. 

I am president of a police union. I speak solely for practicing 
police officers, not police administrators. We represent over 20,000 
police officers from department throughout the country. Moveover, 
the AFL-CIO represents an additional 80,000 police officers. We 
are the largest police organization which exclusively represents 
practicing police officers. 

It is Judge Bork’s impact on them and how they provide quality 
police services about which I am most concerned. At first President 
Reagan’s nomination of Judge Bork to the Supreme Court seemed 
to be a simple issue. 

He has been portrayed as an advocate of strong law enforcement. 
Judge Bork is reported to be skeptical about the exclusionary rule 
as I am. He has also endorsed capital punishment as I have. Both 
positions are favored by most of our members. 

If we stop here, we could support him. The issue is far more com¬ 
plicated, however. A careful examination of whether Judge Bork 
should be supported by working police officers and their organiza¬ 
tions requires scrutiny of recent Supreme Court decisions which 
affect police on the beat and as a consequence the citizens they 
serve. 

First a comment about the exclusionary rule in Miranda. Judge 
Bork has viewed the rule and Miranda as tool aimed primarily at 
deterring police misconduct. It has been far more than that. It has 
resulted in an increase in the quality of policy training. As a conse¬ 
quence police officers today are better versed in the law and consti¬ 
tution, have gained sensitivity to the individual rights of citizens 
and are far more sensitive to the community needs. Both are now 
part of the professional values and culture of policing. 

But let me return to the primary question. How would Judge 
Bork’s confirmation to the Supreme Court directly affect police on 
the beat and subsequently citizens. My written testimony reviews 
four recent decisions— Garcia v. San Antonio Metropolitan TYansit 
Authority, a 1985 case affecting the wages and hours of police; Lou- 
dermill v. Cleveland Board of Education, a 1985 case protecting 
police job security; Rankin v. McPherson, a 1987 case protecting 
speech and associational rights in the police work place which is 
vital to representing police officers; and lastly, O’Connor v. Ortega, 
a 1987 decision affecting privacy rights and unreasonable searches 
of police officers on the job. 

Given the short time I have, I will concentrate only on Garcia 
and Loudermill. First, Garcia. This decision held that the Fair 



3851 


Labor Standards Act applies to all State and local public employ¬ 
ees. It overturned an earlier 1976 court ruling. The Garcia decision 
initiated major adjustment in police wages, hours and working con¬ 
ditions. 

Many of you will recall that my union worked long and hard 
with Congress to adjust to the Garcia decision in developing the 
Fair Labor Standards amendments of 1986. Judge Bork has indicat¬ 
ed that he would overrule Garcia. 

When he appeared before this committee, he was asked to point 
to an area in which he would respect precedent even in face of his 
disagreement with the reasoning upon which that precedent was 
placed. 

He indicated that he would respect the Court’s current rules 
with regard to the commerce clause except in recently developing 
areas as relating to federalism. A review of Garcia leaves little 
doubt that Garcia is the recent precedent with which Judge Bork 
disagrees and to which he would not defer. 

Let me point out that the Garcia decision is a five to four deci¬ 
sion. Chief, then Associate, Justice Rehnquist led the dissent. He 
wrote that his position will, in time again, command that support 
of the majority of the Court. We are appalled at that prospect. 

Senator Metzenbaum who led the activity to achieve 1986 
amendments to the act will remember the confusion we went 
through then, the havoc caused by constant whiplashing, the Wage 
and Hours Act unconstitutional in 1977, constitutional in 1985, un¬ 
constitutional again with the new majority will even be worse. 

It will cause great harm to the working lives of professional 
police officers and undermine their confidence in the constitutional 
guarantees they are pledged to protect. 

The second case, Loudermill and police officer job security. To 
understand our concern about this decision, you must understand 
the working life of a police officer. The popular view of the police 
officer, crime fighter operating under strict command and control, 
enforcing the law, is not only wrong, it masks the truth about the 
nature of police work. 

Oh, it is partially true, but most of our work, well over 80 per¬ 
cent, fall outside of these descriptions. Most of the time we deal 
with troubled people in some sort of need, the homeless, the inebri¬ 
ated, troublesome youths, emotionally disturbed persons let loose 
on the streets without help, and others. 

We negotiate, counsel, rebuke, mediate, refer and interpret. The 
list is long. But understand. Most of the situations with which we 
deal are ambiguous. Who is to say who is right or wrong in most 
disputes? We handle them alone and without the benefit of on-the- 
scene supervision or strong policy guidance, and they are full of 
possibilities for making mistakes. 

Fortunately, our record is good. Very few of the incidents get out 
of hand, and the very invisibility of most of our actions testifies to 
police skill in handling them. But mistakes are bound to be made. 
The ambiguity of those incidents assures it. And, frankly, police ad¬ 
ministrators have not had a good record of handling individual offi¬ 
cers when well-intentioned mistakes have been made. 

We have no quarrel with disciplining incompetent officers as 
long as fair procedures are used, but we do believe that practicing 



3852 


police officers who, in the course of their duty are confronted with 
almost unbelievably complex and ambiguous situations, are in need 
of rigorous due process protection from arbitrary discipline. 

Given police administrators' practices in the past, we have great 
concern about Loudermill. In 1985, the Court held that a tenured 
public employee could not be discharged without a pre-discharge 
hearing. 

Beyond that, the Court outlined a whole series of employment se¬ 
curity protections which are very important to the working police 
officer. The Loudermill decision resulted in seven separate written 
opinions and, of course, has thereby caused a great deal of litiga¬ 
tion concerning the meaning and extent of the rights of police offi¬ 
cers faced with discipline. 

Again, Chief Justice, then Associate Justice Rehnquist, wrote a 
strong dissenting view concerning limits he would place on the pro¬ 
tection afforded public employees by the 14th amendment. 

Given what Judge Bork has said and written about the 14th 
amendment, we fear that Judge Bork would further jeopardise this 
important protection. His views on the first and fourth amendment 
raise additional concern about the on-the-job rights of working 
police officers reviewed in Rankin and in Ortega. Mr. Leibig and I 
are prepared to discuss these concerns in response to any question 
you may have. 

In sum, Judge Bork’s position on the exclusionary rule and cap¬ 
ital punishment makes him superficially attractive to some police 
administrators. On close examination, however, it is clear that a 
strong stance for law and order is only partially found in those po¬ 
sitions. Part of any strong stance on law and order must include 
concern for the equity and workplace needs of the practicing police 
officer who daily struggles to assure for citizens not only law and 
order but the benefits of constitutional guarantees. Judge Bork’s 
insensitivity to these issues is the reason we respectfully recom¬ 
mend that you deny him your consent to this appointment. 

I thank you. 

[Statement follows:] 



3853 


Testimony of 

ROBERT B. KLIK3HET 
PRESIDENT 

I am Robert B. Kliesmet, President of the International 
Union of Polioe Associations (IUPA), APL-CIO. Mr. Michael 
Leibig, IUPA’s General Counsel and an adjunct professor in public 
employment law and labor policy at the Georgetown University Law 
Center, is here with me. I was a police officer in the Milwaukee 
Police Department from 1955 to 1984, the last 15 years of which 1 
was the leader of the Milwaukee Police Association. 

I face a difficult decision on the nomination of Robert Bork 
to the Supreme Court. 1, like many of you, am pulled both ways 
by his nomination. Let me explain. 

I am President of THE police union. I speak solely for 
practicing police officers, not police administration. IUPA is 
the police affiliate of the AFL-CIO. We represent over 20,000 
police officers from departments throughout the country. 

Moreover, the AFL-CIO represents an additional 80,000 police 
officers. Other police organizations may claim larger 
memberships, however, we are the largest police organization 
which represents exclusively practicing line officers. It is 
Judge Bork * a impact on then and how they provide quality police 
services about which I am most concerned. 

At first, President Reagan's nomination of Robert Bork to 
the Supreme Court seemed to be a simple issue. He has been 
portrayed as an advocate of strong law enforcenent. Judge Bork 
is reported to be skeptical about the exclusionary rule — he 
has also endorsed capital punishment. Both positions are favored 
by many of our members. 

If we stopped here, we could support him. The issue is far 
more complicated, however. A careful examination of whether 
Judge Bork should be supported by working police officers and 
their organizations requires scrutiny of recent Supreme Court 
decisions which affect police on the beat and, as a consequence, 
the citizens they serve. What would be different if Judge Bork 


were on the court? 



3854 


A coiMnt on the exclusionary rule before I answer this 
question. Like lost police officers, I resented the rule and 
along with Judge Bork viewed it and the Mi randa decision as tools 
aimed primarily at deterring police misconduct. But each has 
also been an important milestone in increasing police 
professionalism. They have helped us understand that while 
fighting crime is an important police responsibility, our primary 
task is to protect our country’s treasured constitutional 
guarantees. As a consequence, police officers today are better 
versed in the law and constitution, have gained sensitivity to 
the individual rights of oitizens, and are far more sensitive to 
community needs than in the past. Ve have little enthusiasm 
about abandoning the exclusionary rule or Miranda: they are now 
part of our professional values and culture. 

But, let me return to tbe prinary question: How would Judge 
Bork*8 confirmation to the Supreme Court directly affect police 
on the beat and, subsequently, citizens? 1 would like to review 
four recent decisions: 

Gay ci ft v , . 8a B„A p tQPlo_ Me t r o pot i ta n T p» n ejt Authori ty 

469 U.9. 528, 105 S. Ct. 1005 (1985) 

Loudermill v. Cleveland Board of Bducation 

470 U.S. 532, 105 S. Ct. 1487 (1985) 

O’Connor v. Ortejta ; and 

94 L. Ed. 2d 714 (1987) 
v- McPherson 

97 L. Ed. 2d 315 (1987) 

First, Garcia . This decision held that the federal Fair 
Labor Standard Act applies to state and local public employees. 

It overturned an earlier 1976 ruling ( National League of Cities ). 
The Garcia decision initiated major adjustments in police wages, 
hours and working conditions. Moreover, it resulted in enactnent 
by Congress of the Fair Labor Standard Amendments of 1986. Many 
of you will recall that IUPA working long and hard with Congress 
to adjust to the Qarciq decision to develop fair wage and hour 


rules. 




3855 


Judge Bork has indicated that he would overrule Qarcia . 

Last week before this Committee he was asked to point to an area 
in which he would reapeot precedent even in face of his 
disagreement with the reasoning upon which that precedent was 
placed. He indicated that he would respect the Court's current 
rules with regard to the Commerce Clause except in recently 
developing areas relating to federalism. A review of Garcia 
Leaves little doubt that Garcia is the recent precedent with 
which Judge Bork disagrees and to which he would not defer. This 
is consistent with prior statements made by Judge Bork. (see 
attachment) 

Let me point out that Garcia is a 5 to 4 decision. Chief, 
then Associate, Justice Rehnquist led a dissent. He wrote that 
his National League of Cities position will "in time again 
command that support of the majority of the Court." 

We are appalled by that prospect. Senator Metzenbaum, who 
led the activity to achieve 1986 amendments to the Act, will 
remember the confusion we went through then. The havoc caused by 
constant whiplashing — the wage and hour act unconstitutional in 
1977, constitutional in 1985, unconstitutional with a new 
majority -- will even be worse. It will cause great harm to the 
working lives of professional police and undermine their 
confidence in constitutional guarantees they are pledged to 
protect. 

Second, Louderaill and Police Officer's Job Security. To 
understand our concern about this decision, you must understand 
the working life of a police officer. It is not well understood. 
The popular view of the police officer -- crime fighter, 
operating under strict command and control, enforcing the law 
i a not only wrong, it masks the true nature of police work. Oh, 
it is partially true, but most of our work, over 80S, falls 
outside of these descriptions. Host of the time we deal with 
troubled people in some sort of need —■ the homeless, the 
inehristed, troublesome youth, prostitutes, emotionally disturbed 
persons set loose on the streets without help, and others. Often 
we deal with people in conflict — merchants and customers, 
landlords and tenants, husbands and wives, lovers, parents and 



3856 


children. laralj are they breaking the law when we are called on 
to deal with thee. Yet they all represent problems about which 
citizens expect us to do somethin*. And we try. he negotiate, 
counsel, rebuke, nodiate, refer, interpret, — the list is long. 
But understand, aost of tbe situations with which we deal are 
ambiguous (who is to say who is right or wrong in nost disputes), 
we handle then alone and without the benefit of on-the-aoene 
supervision or strong policy guidance, and they full of with 
possibilities for asking Mistakes. Fortunately, our record is 
good. Very few of the incidents get out of hand and the very 
Invisibility of Most of our actions testifies to police skill in 
handling then. 

But Mistakes are bound to be made. The ambiguity of these 
incidents assures it. And frankly, police departments have not 
had a good record of handling individual officers when well- 
intentioned mistakes have been made — either by the officer or 
by a citizen who inappropriately makes charges against am 
officer. One final introductory comment: I an not now talking 
about incompetent police officers. Every profession suffers from 
a small number of lncompetenta. Making mistakes and being 
incompetent are very different issues, however. We have no 
quarrel with disciplining incompetent officers — as long as fair 
procedures are used. But we do believe that practicing police 
officers who in the course of their duty are confronted with 
almost unbelievably complex and ambiguous situations are in need 
of rigorous due process protection from arbitrary discipline. 
Given management practices in the past, we have great concern 
about Loudermi11 . 

In 1985 the Court held that a tenured public employee could 
not be discharged without a pre-discharge hearing. Beyond that, 
the Court outlined a whole series of employment security 
protections which are very important to the working police 
officer. The Loudermill decision resulted in seven separate 
written opinions and, of course, has thereby caused a great deal 
of litigation concerning the meaning and extent of the rights of 
police officers faced with discipline. Again, Chief Justice, 
then Associate Justice, Rehnquist wrote a strong dissenting view 



3857 


concerning Units he would place on the protection afforded 
public employees by the 14th Amendment. Given what Judge Bork 
has said and written about the 14th Amendment* we fear that Judge 
Bork would further Jeopardise this important protection. 

Third, Rankin v. McPherson and Police Associational and 
Speech Rights. In its last term the Supreme Court re-enforced 
its long standing commitment to the Pirst Amendment Protection 
afforded public employees in the work place in its Rankin 
decision. This protection is extremely important to police 
officers* especially to police officers who are active In unions 
or employee associations. First Amendment protections, both with 
regard to speech and associational rights, are vital to 
organizing working police officers and representing them with 
regard to wages, hours* and working conditions. 

The Rankin decision was decided by a 5 to 4 split court. 
Justice Scalia, Joined by the Chief Justice* and Justices White 
and O'Connor* dissented and argued in favor of limiting the First 
Amendment protection afforded "non-policy making" positions in 
state and local law enforcement. We fear that were Judge Bork to 
be added to the Court* these vital protections would be 
diminished. 

Finally, Ortega "Searching the Police". Thia final example, 
differs a bit from the others* In its last term the Court in 
O'Connor v, Ortega . 94 L. Bd. 2d 714 (1987)* decided a key case 
concerning the right of public employees to be protected from 
unreasonable search and seizure in the work place. 

The opinion* however, waa again divided and somewhat 
unclear. Five members of the court felt that the search of a 
government doctor's desk* files* and pagee might have been 
reasonable* and therefore decided that summary Judgment was 
inappropriate. Five members of the court agreed the doctor had a 
reasonable expectation of privacy in his office; all members 
agreed the doctor had a reasonable expectation of privacy in hiB 
desk. The four dissenting Justices argued that there clearly waa 
not sufficient cause to justify the search. 

Justice O'Connor's plurality opinion generated a concurring 



3858 


opinion from Justice Scalia which objected the vagueness of the 
plurality's opinion: 

The plurality opinion instructs the lower courts that 
existence of Fourth Amendment protection for a public 
employee's business office is to be assessed "on a 
case-by-case basis,” in light of whether the office is 
"so open to fellow employees or the public that no 
expectation of privacy ie reasonable." No clue is 
provided as to how open "so open" must be; much less is 
it suggested how police officers are to gather the 
facts necessary for this refined inquiry. As we 
observed in Oliver v. United States . "<t>his Court 
repeatedly has acknowledged the difficulties created 
for courts, police, and citizens by an ad hoc, case-by¬ 
case definition of Fourth Amendment standards to be 
applied in differing factual circumstances." 

(cites omitted) 

The O'Connor standard threatens to the working police 
officer's rights to Fourth Amendment protection in the work 
place. It raises the situation in which a hard working officer 
could easily return to a departmental locker room after a day 
investigating a drug case "frustrated by Fourth Amendment 
technicalities" which prevent hia discovery of vital evidence in 
a case, to find that his persona locker has been searched by the 
department because the Fourth A* idment protection afforded the 
police officer in hia work place lb leas than that afforded the 
criminal suspects he is investig' ting. We are not certain where 
Judge Bork would come down betwe' 1 Justice Scalia and Justice 
O'Connor on this specific issue * *t hia proclaimed hostility to 
privacy rights worry us. 

In sum. Judge Bork's position on the exclusionary rule and 
capital punishment makes him superficially attractive to some 
police administrators. On close examination, however, it is 
clear that a strong stance for law and order is only partially 
found in these positions. Part of any strong stance on law and 
order must include concern for the equity and work place needs of 
the practicing police officer who daily struggles to ensure for 
citizens not only law and order but the benefits of 
constitutional guarantees. ~Judgt. Bork's insensitivity to these 
issues is the reason we respectfully recommend that you deny him 
your consent to this appointment. 

Thank you. 



3859 


ATTACHMENT 


The NAACP Legal Defense Fund, Inc., haa reported to thia 
Committee on this issue: 

Judge Bork, then Solicitor General, personally argued Usery 
on behalf of the United States, and urged that the statute be 
held constitutional. That argument did not, of course, 
necessarily reflect his personal view*, since the Department of 
Justice traditionally defends the constitutionality of any act of 
Congress unless its invalidity ia undeniable. In 1982, when 
Usery was still the law, Judge Boric, announced that be agreed with 
the majority in Uaery . expressing regret only that the Supreme 
Court did not go further in limiting the authority of Congress: 

Despite my professional chagrin, I agree at least with 
the impulse that produced the result in National League 
of Cities v. Uaery . the case which I lost, which was 
the invalidation of the amendment to the Fair Labor 
Standards Act that applied wages and hours provisions 
to the employees of state and local governments. But I 
doubt that the case has much generative potential. I 
doubt that it does more than express an impulse because 
there is no doctrinal foundation laid in the case for 
the protection of state rights or state powers... 

The opinion, as you know, by Justice Rehnquist, 
claims that it is one thing for the federal government 
to displace a state's laws on particular suhjects but 
quite another to regulate the state's activities 
themselves. Now that distinction, if it is one, is 
unrelated to the concerns of federalism because it is 
entirely possible to strip a state of all of its 
Sovereignty either way, either by regulating the state 
itself or by displacing its policy making function with 
federal law. (Speech, Federalist Society, Yale 
University, April 24, 1982, pt.l, pp.2-3) 

After Garcia . in 1986, Judge Bork reiterated his support for 
Usery . and argued that Uae ry had failed to survive because judges 
had not been sufficiently activist in attacking the authority of 
Congreas to legislate in areas that affected state sovereignty: 

Looking back, it seems that National League of Cities 
v. Usery was correctly decided. Its weakness, which 
proved fatal, lay In the opinion's insistence that what 
one court did was consistent with all prior precedent 
and in its attempt to draw distinctions that seem 
dubious* That made the decision vulnerable and subject 
to attack on its own terms. If federalism is to 
receive judicial protection, I think courts will have 
to admit that bright-line teats are unavailable, that 
prior cases are irreconcilable, and that decisions will 
turn on such matters aa the degree of federal 
intrusiveness and the vitality of states sb police 
makers. Perhaps a presumption can be established 
against federal invasions of areas traditionally 
reserved to the states. Perhaps other, subsidiary 
criteria can be developed. Vould this be unacceptable 
judicial activism? Perhaps not. There is nothing 
wrong with judges being active in the defense of real 
constitutional principles. Activism in is unfortunate 
form occurs when judges create constitutional 
principles or move well beyond the allowable meaning of 
an actual principle. Federalism is, of course, a basic 
constitutional principle and it is appropriate that its 
core be defended. (Speech, Attorney General's 
Conference, January 24-26, 1986, pp.10-11) 


88-374 0 - 89-37 



3860 


Senator Kennedy. Mr. Hampton. 

Mr. Hampton. Good evening, Mr. Chairman. 

Senator Kennedy. Good evening. 

TESTIMONY OF RONALD HAMPTON 

Mr. Hampton. My name is Ronald Hampton and I am the Na¬ 
tional Information Officer for the National Black Police Associa¬ 
tion. I am a 15-year police officer with the Metropolitan Police De¬ 
partment in Washington, D.C. 

I am here today to represent the National Black Police Associa¬ 
tion, and I am here to testify and go on record in opposition to 
Robert Bork’s nomination to the U.S. Supreme Court. 

The National Black Police Association believes that such a deci¬ 
sion will profoundly influence the law of the land well into the 21st 
century. As an organization of persons who are bound to uphold 
the law, we find it intolerable that such a decision could even be 
contemplated, for it would make our profession a mockery. 

We believe that Robert Bork is a rigid ideologue far outside the 
mainstream of America’s public opinion and, as such, would make 
our profession not only a mockery but virtually impossible to per¬ 
form with any integrity. 

Mr. Bork has opposed Supreme Court decisions barring judicial 
enforcement of racially restrictive covenants, upholding parts of 
the Voting Rights Act of 1965, providing remedies for unlawful 
school desegregation, and affording housing opportunities for low- 
income black citizens who have been victimized by government dis¬ 
crimination. 

He has rejected the principle of a constitutional right to privacy 
and would permit the government to intrude on the fundamental 
privacy aspects of the lives of individual Americans. 

He holds an extreme, limited view of first amendment guaran¬ 
tees of the separation of church and State and free speech. He 
would severely limit the Supreme Court’s role in protecting indi¬ 
vidual liberties and rights. He would slam the court house door on 
people seeking relief from governmental abuses. 

He is a key proponent of Attorney General Edward Meese’s 
notion of original intent which holds that the views of the framers 
provide only the meaning of the Constitution, ignoring our nation’s 
200 years of progress, but also denying those of us who were 
brought here under conditions over which we had no control and 
those who came later on their own free will any participation in 
the making of this nation, as is our right under the terms of the 
Constitution. Clearly, original intent is a vehicle for limiting indi¬ 
vidual rights without recourse to the courts. 

As a law professor, a government official, and as a judge, Mr. 
Bork has invaded against most of the constitutional protections af¬ 
forded by the Supreme Court during this modern era. 

Each of these issues impacts on the role that black police officers 
must play in today’s society. The nomination of Mr. Bork to the 
U.S. Supreme Court constitutes a real and threatened obstacle to 
the contribution of not only black American police officers, but to 
the profession as a whole. 



3861 


Therefore, the National Black Police Association asks that you 
vote no for Robert Bork and allow the Supreme Court to continue 
the guarantees and protection of our Constitution to all American 
people. 

Thank you very much. 

[Prepared statement follows:] 



3862 


* 3C7, :«STI'0Mv 
P " ? V“,f?0 

o y 

Rc*a-i Id L. 4?'Tip he i 
"or the 

NATIONAL BLACI POLICE ASSOCIATION 
Cap Member S*'*, 1 '’97 


riNoui shi:d thiclist and guests, 

:i C SH-- r 0“ THE NATIONAL L-fLA ~J P'OL ICE ASSOC I AT I CM I W hE'C ”? TSST l P‘ < 

>-AC T'I L* 5 3N 'TC/rr-D Vi OPPOSITION 3 ROScR^ EOPi '3 NOMINA r rr-N T'j *,-■£ -j.:, 

- ■_ KP 'IE » 

T.iE NAT OAl = 'X I.:E ASSOCIATION tELICWS THAT SUCH A PEJISlGr Wl-L 

pc'OI'OUiL-L/ >FL-.fSN".: THE L/-U OF THE LAND JELL IN'G ’HE 21ST CENTURY. 

A QRG-U:TATiON T PEFSCNS WHO APE HOUND TC UFHOLJ r !-J««T LA*-' HE FI’.C I' 
iMTf _:£PA..LC T‘-A DECISION CUULD EVEN SE CONTEMPLATED- FOR IT GOULD 
1-VF. 0U‘ V .- ’ OP -VTSIGN a MOQEPO 

Ni * CL IE /•■ IaAI bOBER t DuPI T 5 A RIO I J IDEOLOGUE. FAR OUTSIDE THE 
NMNC-TE-M j * A'tF*- n: Ml -II8L1C OPINION WC AS SUCH WCULD M«V E OUR 
f-'«G*£3ol:3N ; '0 f J Nl / A LOCI ERY BUT VIRTUE LY IMFGSSIBLE TO PERFORM WITH ANr 
• MEUPI ' v . 

r*. jcp 1 u as f.j< pose;- supreme coup7 decisions sapping judicial enforcement 

r i=Ar;i LL Y ‘^STRICTIVE DOVENEN P3. UPHOLDING PAR'S jF THE VOTING RICH’S 
AC" • - l'.= 5 -ROVIOING "EMEDIES PMR UNLAWFUL SCHOOL GFSESRFTAT1U‘U hUD 
AFFORVIni" -'JUSINS OF- , -DRTUNr r IES 'OR LOW INCOME SLACI CITHENS Lt-C' AAsE 
oRE-J v I 311 .1' ZED B' GOVERNMENT DI£CP CMINAT 'ON, , 

► E -VL-* Ap. J.TC^'D TmE i : R. MCI RLE OF A CONSTITUTIONAL RIGHT Tj P*I-'-a-“e t-'-'D 
•tO.LiJ “HE GOVERNMENT- TO INTRUDE CM FUNuAMEN TALL < PRIVATE A JPEG' 1 S L*= 

H- OF l iCl' fCUAL AMERICANS. 

,.ie FJL AN J v 1 PEN ELY LIMITED VIEW 0 f THE F1FST AMENDEMENf GUARANTEE OF 
, ;.\ C* CHI frCH AND STATE AND FREE SPEECH. 

-tE uVU.H iLVEFEL'. LIMIT THE SUPREME COURT'S POLE IN ROlECTIN-3 wDi' [l JAL 
L‘tER”TES AND RIGHTS. HE WOULD SL*M THE COURTHOUSE DOOR ON PEOPLE 5S‘-t JMfc 
. L'_;S“ FROM GOVERNMENTAL ABUSES. 

H7 a i ZY PROPONENT OF ATTORNEY GENERAL EDWIN r£ZSE*S NOTION OF 
■'ORIGINAL INTENT" WHICH HOLDS THAT THE VIEWS OF THE FT AUER'S °PUvIjE THE 
’JUL MEHHING FOR THE CONSTITUTION. IGNORING OUR NATION'S a»X* V EAR 3 OF 
-R JJ..RE jS . BUT ALSO DENYING THOSE OF US WHO I'EFE BROUGHT MFRE UNDER 
crr:D: r :ClNS OF WHICH WE HAD NO CONTROL AND THOSE WHO CAME LATER CTf- T HE*^ 

O-IN FFEZ “III, mN,' REAL PART ICE P’^T I ON IN THE ’*MAi ING C p THIS NATION 'AS IS 
JUK mIZH: UNDER "«“iE ^£“MS G- THE Cl'NSTlTu T ION. IT IS CLEAR 'HAT "ORIGINAL 
Iw:rN"‘ ES ^ VEHICLE FOR LIMIT'-.NG INDIVIDUAL RIGHTS WITHO'J" RECOURSE Tj 
IHE LCUR V =. 

-rr Hi - r c c-rESUi-rR. A GQVERr ME-T OFFICIAL . AND A JUDGE. . bO.f i r-A--* 

i m *z: shlc r-G -; f i r >t j-. r o f- the c: ns r i n iti dnal c ro'. tc* P f ous #-r - f -opded c v ** 

, 5J . cjrs-E CO'jP I LURING Ti-E MO’SEPN -J" A 

E-r’-J rr THESE ISSUES IMPACT? ON i HE POLE ^HAT Ti-E DLAC,- POL I IE OFFICER 
?.Sr = LA / IN ’’□DAYS SOCIETY. ru F PiQMItAfiCN ')F HP. sOFr TO THE UNITED 
<L‘-.'“ME COURT CONSTITUTES A REAL WO “HREA'CNING uPSI'AClE TO T HE 
00 f IT r I j ij r I ON "JF r 0 T 0 ML V ’ HP I.ACV AMERICAN POLICE OFFICER- 4LT TO THE 
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3863 


The Chairman. Mr. Johnson. 

TESTIMONY OF HAROLD JOHNSON 

Mr. Johnson. Thank you. Before I make my statement, I would 
like to say to the members of the Judiciary Committee and com¬ 
mend the Senate on their confirmation of Judge Sessions as Direc¬ 
tor of the FBI. I think the decision was a very fine decision. He is 
one of the finest law enforcement officers, or can be one of the 
finest law enforcement officers and protectors of the Constitution 
of Americans that you could have. 

The Chairman. Thank you. 

Mr. Johnson. I also commend the Senate on its confirmation of 
Judge Webster to the Central Intelligence Agency. I think that 
Judge Webster will bring integrity and the level of performance of 
the agency back to where it should be for this nation. 

Mr. Chairman and distinguished members of the committee, if 
Judge Bork were currently seated on the Supreme Court of this 
nation, I firmly believe that I would not be here today representing 
black law enforcement executives of this nation. 

As President of the National Organization of Black Law Enforce¬ 
ment Executives, I represent a membership organization made up 
of command-level law enforcement officials from local, State, and 
federal agencies. 

Within this membership are a number of chiefs of police, includ¬ 
ing ten big-city chiefs and 17 federal supervisory special agents in 
charge of district offices or divisions. 

NOBLE is committed to serve and protect. We function in an im¬ 
portant dual role within law enforcement and the black communi¬ 
ty. We are dedicated to providing quality and professional policing 
to our communities and to America. 

In order to maintain and assure our continued role, we vigorous¬ 
ly reject the nomination of Judge Robert Bork to the Supreme 
Court of the United States of America. NOBLE believes that the 
delicate balance between our mandate to serve and protect versus 
the preservation of individual rights will be dangerously upset if 
Judge Bork is confirmed. We believe he will create a legacy that 
will undermine the concept of balance for generations to follow. 

As the replacement for Associate Justice Lewis F. Powell, Judge 
Bork would be in a position to cast a deciding vote and, as a conse¬ 
quence, create a shorter list of rights and privileges. 

Given the insidious tangle of drugs and violence in minority and 
poor communities, you might expect that a law enforcement orga¬ 
nization such as NOBLE would embrace and applaud the freedom 
to take action that will result, given Judge Bork’s broad interpreta¬ 
tion of the exclusionary rule and his narrow reading of Miranda. 

Officers should move more quickly, for example, on known crack 
houses and against known drug dealers. However, Judge Bork’s po¬ 
sition on the exclusionary rule and Miranda cannot be viewed in 
isolation. 

His rulings vividly display a web of rights and privileges he is 
unwilling to preserve or protect. His philosophy regarding original 
intent and judicial restraint undermines the fundamental rights 
and liberties protected by the Constitution of this nation. 

I and many members of NOBLE joined law enforcement and the 
law enforcement community because we either personally experi¬ 
enced or witnessed police officers in the 1950’s and 1960’s conduct- 



3864 


ing illegal searches and seizures, improper interrogations, and the 
arresting of suspicious individuals without probable cause. These 
acts were all serious infringements upon the rights of individuals. 

I joined the police force in 1964. I became a member of the law 
enforcement community to take a personal role in defending the 
constitutional rights of all Americans, especially minorities and the 
poor—rights which have been denied me. 

My testimony here today is personal. I am who I am today be¬ 
cause of the opportunities afforded me through affirmative action. 
NOBLE exists today because of affirmative action. 

We are committed to ensure that the law enforcement communi¬ 
ty not only represents those they serve but also are sensitive to 
their special needs. If Judge Bork is confirmed, I can envision that 
the hands of time will be turned back to a community of the haves 
and the have-nots, black versus whites, and the weak against the 
strong. 

I and members of NOBLE are not saying that time will regress if 
Judge Bork is confirmed. What we are concerned about is that his 
very presence on the Supreme Court will create the opportunity for 
the conversation about individual rights and social reform to shift 
in such a way that the future resembles the past. 

As law enforcement executives, our fundamental duties are to 
serve mankind, to safeguard lives and property, to protect the inno¬ 
cent against deception, the weak against oppression and intimida¬ 
tion, and the peaceful against violence and disorder, and to respect 
the constitutional rights of all men and women to liberty, equality 
and justice. 

To conclude, we, the members of the NOBLE, reject the nomina¬ 
tion of Judge Bork to the Supreme Court. We are committed to live 
in the present and will not allow the balance of our rights and 
privileges to be upset in favor of the past. 

Mr, Chairman, I thank you. 

[Prepared statement follows:] 



3865 



NATIONAL. ORGANIZATION OF 
BLACK LAW ENFORCEMENT EXECUTIVES 


President 

HAROLD JOHNSON 
Public S«te|y Director 
Highland Per* HiCD 
immediate Pail Prstidsnf 
GEORGE NAPPER 
Public Safely Commissionar 
Atlanta GA 

National Vic* President 
RONALD D NELSON 
CN«1 of Robe* 

Berkeley. CAPO 
Region t He# Prat/Oar?/ 

DONALO c burton 

Under$n«riff 

Camden Co (NJ| SberiHs Oept 
Region 2 Vrc* President 
MARCELL US BOLES 

Baltimore UD PD 
Region 3 Vice Presidenr 
MOSES ECtOR 
Special Apeni-m-Charge 
G B i Thomaaion GA 
Region 4 Vice Pras«»anf 
EDWARD C BROOKS 
Dapuly Chief 
Chicago il P D 
Region 5 Vice President 
SYLVESTER JONES 
Chief ol Police 
NorlhwoOds MO P D 
Region e Vice President 
DAN NELSON 
Chief ol Police 
E Palo AMo CAPO 

Corresponding Secretary 

LARRY C BOLDEN 
Deputy Chief 
Las Vegas Nv P D 
Treasurer 
BILLY NORWOOD 
Chwf Protective Services 
0 C Government 
financial Secraiaty 
G HELENA ASHBY 

LA Co Sheriffs Oepl 
Sergeem-Ai Arms 
ROBERT f FAISON 
inspector (Ret) 

U S Secret Service 
Parnamentenan 
STEVE BOWSER 
Public Safety Director 
Aiken la Uni-ertny Center 


ELSIE L SCOTT PhD 
frecirfive Diracioi 
O NEAL O WRIGHT 
Qenerai Counsel 


Judiciary Testimony of Harold L. Johnson 
President* National Organization of 
Black Low Enforcement Executives 


Mr. Chairman and Distinguished Members of the 
Committee: 

If Judge Robert Heron Bork were currently 
seated on the Supreme Court of this Nation, I 
firmly believe that I would not be here today 
representing the Black Law Enforcement Executives 
of this Nation. 

As President of the National Organization of 
Black Law Enforcement Executives (N.O.B.I-E.)* I 
represent a membership organization made up of 
command level law enforcement officials from 
local, state, and federal agencies. Within this 
membership are a number of chiefs of police, 
including ten big city chief executives, and 
seventeen federal supervisory special 
agents-in-charge of district offices or 
divisions. 

NOBLE is committed to serve and protect. 
We function in an important dual role within the 
law enforcement and the Black Community. We are 
dedicated to providing quality and professional 
policing to our communities and to America; and 
in order to maintain and assure our continued 
role, we vigorously reject the nomination of 


'22J Pl.NNNM VANIA A\TI* 


20001 


raV) r r Ih-HHI I 




3866 


Judiciary Testimony of Harold L. Johnson 


Judge Robert Heron Bork to the Supreme Court of 
the United States of America. 

NOBLE believes that the delicate balance 
between our mandate to serve and protect versus 
the preservation of individual rights will be 
dangerously upset if Judge Bork is confirmed. 
We believe he will create a legacy that will 
undermine the ’’concept of balance" for 
generations to follow. As the replacement for 
Associate Justice Lewis F. Powell, Judge Bork 
would be in the position to cast the deciding 
vote and as a consequence create a shorter list 
of rights and privileges. 

Given the insidious tangle of drugs and 
violence in minority and poor communities, you 
might expect that a law enforcement organization 
such as NOBLE would embrace and applaud the 
freedom to take action that would result, given 
Judge Bork's broad interpretation of the 
exclusionary rule and his narrow reading of 
Miranda. Officers could move more quickly, for 
example, on known crack houses and against known 
drug dealers. However, Judge Bork’s position on 
the exclusionary rule and Miranda cannot be 
viewed in isolation. His rulings vividly 
displays a web of rights and privileges he is 
unwilling to preserve and protect. His 
philosophy regarding "original intent" and 
"judicial restraint” undermine the fundamental 
rights and liberties protected by the 
Constitution. 

I and many of the NOBLE's members joined the 
law enforcement community because we either 
personally experienced or witnessed police 
officers in the 1950*8 and 1960's conducting 
illegal seacchs and seizures, improper 



3867 


Judiciary Testimony of Harold L. Johnson 


intecrogatiorte and arresting "suspicious" 
individuals without probable cause. These acts 
were all serious infringements of the rights of 
individuals. 

I joined the police force in 1964, I became 
a member of the law enforcement community to take 
a personal role in defending the Constitutional 
rights of all Americans* especially minorities 
and the poor — rights which have been denied to 
me. 

My testimony today is personal. I am who I 
am today because of the opportunitiea afforded me 
through affirmative action . NOBLE exi^s today 
because of affirmative act ion. We are committed 
to ensure that the law enforcement community* not 
only represent those they serve, but are 
sensitive to their special needs. 

If Judge Botk is confirmed* 1 can envision 
that the hands of time will be turned back to a 
community of the have and have-nots, blacks 
versus whites* and the weak against the strong. 
I and the members of NOBLE are not saying that 
time will regress if Judge Bork is confirmed; 
what we are concerned about is that his very 
presence on the Supreme Court will create the 
opportunity for the conversation about individual 
rights and social reform to shift in such a way 
that the future resembles our past. 

As law enforcement executives, our 
fundamental duty is to serve mankind: To 
safeguard lives and property; to protect the 
innocent against deception* the weak against 
oppression and intimidation * and the peaceful 
against violence and disorder. We are sworn to 
respect and protect the Constitutional rights of 



3868 


Judiciary Testimony of Harold L. Johnson 
-4- 


all men and women and to ensure liberty/ equality 
and justice* 

To conclude/ we the members of NOBLE reject 
the nomination of Judge Bork to the Supreme 
Court. We are committed to live in the present 
and will not allow the balance of our rights and 
privileges to be upset in favor of the past. 


Respectfully yours/ 



hafold iHCJ^hnson, President 
National Organization of 
Black Law Enforcement 
Executives 



3869 


The Chairman. Thank you, Mr. Johnson. 

Senator Thurmond, any questions? 

Senator Thurmond. We are glad to have you gentlemen here. 

Mr. Johnson, the name of your organization is the National Or¬ 
ganization of Black Law Enforcement Executives? 

Mr. Johnson. That is correct. Senator. 

Senator Thurmond. Are all your members black? 

Mr. Johnson. No, sir. Some are-. 

Senator Thurmond. Well, why do you have “Black” in the title? 

Mr. Johnson. Because that was the original meeting of black ex¬ 
ecutives that came into the organization. However, we have since 
our inception brought on many other minority executive officers, 
including the Chicanos, including members from Saudi Arabia, 
from Africa, from Haiti and the Caribbean. 

We do also have white members, also. In fact, my assistant direc¬ 
tor, who is white—he happens to be Italian, but he is a proud 
NOBLE member. 

Senator Thurmond. How many white members have you? 

Mr. Johnson. I count approximately five at this particular time, 
Senator. 

Senator Thurmond. How many? 

Mr. Johnson. Five. 

Senator Thurmond. Five? 

Mr. Johnson. Yes, sir. 

Senator Thurmond. Five white members? 

Mr. Johnson. Yes, sir. 

Senator Thurmond. And how many black members have you? 

Mr. Johnson. Approximately 1,400 command-level executives. 

Senator Thurmond. Fourteen hundred? 

Mr. Johnson. Yes, sir. 

Senator Thurmond. Mr. Hampton, the name of your organiza¬ 
tion is the National Black Police Association. Are all your mem¬ 
bers black? 

Mr. Hampton. About 98 percent- 

Senator Thurmond. I can’t hear you. 

Mr. Hampton. About 98 percent of them are black. 

Senator Thurmond. Well, how many are white? 

Mr. Hampton. We have several organizations that have- 

Senator Thurmond. What? 

Mr. Hampton. We have several organizations in our organization 
that have white members in them, maybe less than one percent. 

Senator Thurmond. Now, how many members have you? 

Mr. Hampton. We represent about 30-some thousand black police 
men and women in the country. 

Senator Thurmond. Thirty thousand? 

Mr. Hampton. Yes, sir. 

Senator Thurmond. Mr. Kliesmet, how many members have 
you? 

Mr. Kliesmet. Twenty thousand, sir. 

Senator Thurmond. Twenty thousand. In all, then, you have 
about 51,400 members, is that right, all three? 

Now, it is a little strange that your three organizations are op¬ 
posed to Judge Bork. We had the Federal Criminal Investigators 
Association endorsing Judge Bork. We had the Fraternal Order of 



3870 


Police endorsing Judge Bork. We had the International Association 
of Chiefs of Police endorsing Judge Bork. 

We had the International Narcotics Association of Police Organi¬ 
zations endorsing Judge Bork. We had the National Law Enforce¬ 
ment Council endorsing Judge Bork. We had the National Sheriffs 
Association endorsing Judge Bork. We had the National Troopers 
Coalition endorsing Judge Bork. We had the Victims Assistance 
Legal Organization endorsing Judge Bork. 

Together, they constitute over half a million members, over 
500,000 members. Now, I believe you sav you have about 51,000. 
That is kind of strange to me. I have worked with law enforcement 
people all my life. I was a judge and worked with them, and as a 
lawyer I worked with them and here in the Senate I worked with 
them. 

I sponsored the comprehensive crime bill, trying to help law en¬ 
forcement people, and I have done everything I could and I just 
don’t understand how your group has gotten straight off from the 
great majority of the law enforcement people. 

I am for law enforcement. I want to help you. I worked with you 
in the past; I want to help you in the future. How did it happen 
that you all strayed off from the rest of them? 

Mr. Hampton. Well, I am not going to begin to speak for the 
other two, but we have disagreed—I know my organization has dis¬ 
agreed on several other issues with some of those organizations you 
named and we have worked with some of them on several issues, 
too. 

So there is a common ground and then there is some uncommon 
ground, and Judge Bork/s nomination to the Supreme Court just 
happens to be one of those issues that we just totally disagree on, 
but we are still friends. 

Mr. Kliesmet. Mr. Chairman? 

Senator Thurmond. I would be happy to hear from you, Mr. 
Kliesmet. 

Mr. Kliesmet. I happen to be a member of the National Law En¬ 
forcement Council and when they put together the panel, they 
asked me if I would care to participate in it. And, of course, being 
an employee representative, a group which is substantially differ¬ 
ent than any of the others, except parts of the Fraternal Order of 
Police, I am an elected advocate of law enforcement personnel who 
believe in collective bargaining. 

And in the process they want certain kinds of guarantees, and 
their dues money has been spent in many cases supporting the 
Garcia decision, the Loudermill decision, the Ortega decision, and 
the Rankin decision, and they don’t want to see it struck down be¬ 
cause they have a vested interest in the representation we provide 
for them. 

So I have to break away from those other groups that profess 
to—and they included me in their 500,000 figure, so we need to 
subtract 20,000 right off the bat. As a matter of fact, there are only 
500,000 law enforcement officers in this country, and somehow they 
bunched them all together and said we represent half a million. I 
think it is far from the truth. 

Senator Thurmond. Well, the International Union of Police As¬ 
sociations, I believe, is your organization? 



3871 


Mr. Kliesmet. Yes, sir. 

Senator Thurmond. So you are mainly opposed to him not from 
the standpoint of law enforcement, but because you represent a 
union and you are afraid he won’t be favorable to the unions. Is 
that it? 

Mr. Kliesmet. Not favorable; I am afraid he won’t be fair. You 
know, as I said in my statement, I support the death penalty. I sup¬ 
port the change in the exclusionary rule as a practicing police offi¬ 
cer, but I have taken on the role of representing police officers who 
are concerned about the job of policing, as I am, and want to be 
more satisfied so they can do a better job for the communities they 
serve. 

And on that basis, we don’t think Judge Bork would be fair to us 
and we couldn’t maintain that level of benefit for the citizens we 
work for. 

Senator Thurmond. Mr. Johnson, do you favor the death penal¬ 
ty? 

Mr. Johnson. Our membership is split on the death penalty and 
we have not spoke to the question as yet on the death penalty. 

Senator Thurmond. Mr. Hampton, do you favor the death penal¬ 
ty? 

Mr. Hampton. My organization is against the death penalty. 

Senator Thurmond. It is against it? 

Mr. Hampton. Yes, sir. 

Senator Thurmond. Well, maybe that is the reason some of you 
are opposed to Judge Bork, because I understand he would favor 
the death penalty. About 80 percent of the American people, ac¬ 
cording to a poll taken, favor the death penalty. So you are out of 
tune with a majority of the American people, aren’t you? 

Mr. Hampton. No, sir. Our position has nothing to do with that 
particular portion of Judge Bork’s, you know, position. We, as first- 
line police officers out there on the street, have seen many of the 
laws that the courts have come up with wrongly used and citizens 
abused, and all of that. So our positions are based on the fact that 
we are out there on the front line where the rubber meets the road 
and where we see these types of abuses and misconduct taking 
place every day. 

Senator Thurmond. Well, after Judge Bork is confirmed to the 
Supreme Court, I think you are going to be well pleased with him. 

Thank you very much. 

The Chairman. Senator Metzenbaum. 

By the way, I say to my colleagues there is a vote on, so if we can 
finish this panel before the vote is finished, it would be much ap¬ 
preciated. 

Senator Metzenbaum. Mr. Chairman, I don’t intend to speak 
long, but I do want to say to my good friend and my colleague from 
South Carolina that I think that this is the first time since I have 
served here that I have heard any organization asked how many 
blacks, how many whites, how many pinks, how many women, how 
many this, how many that. 

I really don’t care what the race of your membership is. You 
have got 1,400 members; they are people. I am very proud to have 
you come down here and testify. I worked with you, Mr. Kliesmet, 
very effectively in connection with the Fair Labor Standard Act 



3872 


amendments that would have wreaked havoc for not only police of¬ 
ficers, but also firemen and many other people in the entire public 
service area working for cities. 

I think your testimony was excellent. I don’t know whether we 
are going to make decisions based upon how many this or how 
many that. I think it is a rather irrelevant question, and I must 
say I took a little offense at it. I hope you didn’t. 

I have nothing further to say, Mr. Chairman. 

The Chairman. The Senator from Wyoming. 

Senator Simpson. Mr. Chairman, I thank you very much. 

It is interesting to have your views on the issues of capital pun¬ 
ishment and those things as law enforcement people. I appreciate 
that. You do differ from the past panelists and I do understand 
that you have a union tie and you are saying some things; that you 
believe that Judge Bork would be anti-union or anti-labor. I don't 
believe that that is reflected in the record. 

I just have some cases I would submit to you, and I am going to 
submit those in the record and I ask you to review those, and if 
any of those cases in which Judge Bork was the majority writer of 
the opinions indicates his labor law record should be of concern to 
you, I would be very interested in that because I don’t read that 
anywhere in those decisions— Northwest Airlines, United Scenic 
Artists, NAACP and Donovan, National Treasury. 

I know my time is limited, but if you would give me your re¬ 
sponse to those cases specifically and tell me what it is in there 
that concerns you as part of his record, I thank you very much for 
your testimony. 

Senator Thurmond. Mr. Chairman, we have got to go and vote, 
but in response to the Senator from Ohio, I just wanted to say that 
you have a right to have your black association, and I certainly 
have no prejudice against black people and 1 want you to know 
that. 

But I just wondered why you called it “black” if it wasn't all 
black. In other words, it is a misleading term; that is all. I am for 
the law enforcement people, regardless of whether you are blacks 
or whites or mixed, or what not. I just want you to know that. I 
want to help you. 

Mr. Johnson. Senator, if I could respond to you briefly, I am too 
a member of the International Association of Chiefs of Police and 
one of our members sits as the fourth vice president on the board 
of directors of the IACP. 

We are all strong on crime, but what we do is what the Congress 
here also has. We have, if you will, a law enforcement black caucus 
within that organization, as you have the Congressional Black 
Caucus, and we think that is good for law enforcement all over. 

We are the conscience of the other police agencies here regarding 
sensitivity. There are some 40,000 police agencies within this 
nation, but we are still a nation that is basically ruled by small de¬ 
partments. 

My membership represents chief executive officers of cities such 
as Chicago, New York, Detroit, Atlanta, Miami. We are talking 
about big-crime America, and we are strong on crime. 

We have followed—the Supreme Court rulings have made us a 
better profession and we are doing a much better job at what we 



3873 


are doing. One of the problems—one of the other people has spoke 
about crime in the black community. We are locking up people 
every day under the constitutional guidelines laid down by the Su¬ 
preme Court. The problem we are having is we don’t have jails. 

The Chairman. Thank you very much. 

Senator Specter. 

Senator Specter. Mr. Chairman, I know the hour is late and we 
are voting on the War Powers Act and we have got to get to the 
vote, but I would just—and I know you men are appearing here 
really on the union issue as opposed to the law enforcement issue, 
but I wonder—or perhaps you testified about the law enforcement 
issue. 

I had to be absent for a few moments, but I would be interested 
in your views of Judge Bork in terms of the record he has estab¬ 
lished in terms of law, order, justice, et cetera. 

The Chairman. Well, I think, if I may, they did speak to the 
issues of justice; they did speak to the issues of law. They did not 
speak to the issues of the union other than one of the witnesses, 
but I think you will find that all in the record. 

I would like to say one thing, by the way. The NAACP is made 
up of white folks like me, as well as black folks. No one has sug¬ 
gested that the title should be changed from back in the days when 
black waB called “colored.” It is still the NAACP. I am a proud 
member. I think my dues are paid; I will soon find out. 

I want you to know that I know Senator Thurmond; he means 
nothing derogatory by what he is saying, notwithstanding the fact 
that I think it is totally irrelevant to the question. 

Gentlemen, thank you very, very much. I appreciate your time 
and your effort. It means a great deal to us all that you are here 
and you are free to go. 

Mr. Johnson. Thank you. 

Mr. Hampton. Thank you. Senator. 

The Chairman. Now, what I would like to do, rather than ad¬ 
journ to go vote—Senator Kennedy, I believe, has a statement, and 
others may. He has voted. Those who haven’t should run and vote 
and come back. 

We will close out this hearing in about 15 minutes. I have a 
couple of statements. Senator Thurmond has some statements and 
some things to be put in the record. We have no more witnesses, 
but we will continue the hearing. 

Gentlemen, again, thank you very, very much. 

I turn it over to Senator Kennedy. 

Senator Kennedy. Mr. Chairman, I appreciate the opportunity to 
make a closing statement. First of all, I want to commend Senator 
Biden for all of his skillful leadership in chairing these hearings, 
all the more so because this has not been an easy time in his 
career. 

The Democratic Party may have lost an impressive Presidential 
candidate, but the Judiciary Committee has an impressive chair¬ 
man and the Senate has an impressive leader and the Constitution 
has an impressive defender. 

The Chairman. Thank you. 

Senator Kennedy. A number of witnesses have noted how fitting 
it is that our hearings on Judge Bork’s nomination to the Supreme 




3874 


Court are taking place during the very days when America has 
been celebrating the bicentennial of the Constitution. 

These hearings have provided an unprecedented education for 
the Senate and for the nation about the Constitution, the Bill of 
Rights, and the fundamental principles that have built this country 
and made America great. 

Some witnesses, and even some Senators, have deplored the fact 
that the American people themselves are becoming involved in this 
debate, but I reject that elitist view, for, after all, the Constitution 
is a people’s Constitution. It belongs to the people, and when the 
fundamental values of America are at stake, the American people 
have at least as much common sense about the Constitution as the 
lawyers do. 

The Constitution is not just a dusty piece of antique parchment 
under glass in a Washington museum. It is a living document that 
defines our freedoms, defends our liberty, and determines our 
future. The Senate has its own responsibility to ensure that the 
Constitution fulfills this role as vigorously in the years to come as 
it has for the past 200 years. 

Everyone who has followed these hearings knows where I stand. 
From the day of his nomination, I have opposed the confirmation 
of Judge Bork because of his clear and often-stated opposition to 
basic values protected by the Constitution. 

On absolutely fundamental issues such as equal protection of the 
laws, the right to privacy, and freedom of speech. Judge Bork is not 
only outside the mainstream of American Constitutional thought, 
but far outside the mainstream. 

Five little words in the 14th amendment to the Constitution have 
loomed large in this debate. Those words, “equal protection of the 
laws,” have been at the heart of three peaceful revolutions that 
have transformed America in our generation. 

The civil rights revolution, the revolution of equal rights for 
women, and the revolution of one man-one vote are three of Ameri¬ 
ca’s greatest achievements in our lifetime and they must not be 
rolled back or placed in jeopardy. 

The Supreme Court has been more than a silent witness to these 
revolutions. It has been a leader, not because activist Supreme 
Court Justices improperly exceeded their role under the Constitu¬ 
tion, but because the Founding Fathers meant for the Constitution 
to be relevant in our modern lives. 

Fair-minded Justices have understood that women and minori¬ 
ties do have the right to equal protection of the laws, that no per¬ 
son’s vote should count more than any other’s, and that the ninth 
amendment was included in the Bill of Rights for a purpose, and 
that the Constitution does protect individual citizens from gross in¬ 
trusions of the government into our families and our private lives. 

Judge Bork, if he puts on the robes of Justice Bork, would place 
these basic values of our democracy and the extraordinary achieve¬ 
ments of our lifetime at genuine and substantial risk. 

That risk is too great for the Senate to accept. President Reagan 
has not been able to achieve his ideological agenda for the country 
through legislation in the Congress and he is not entitled to 
achieve it through an ideological appointment to the Supreme 
Court. 



3875 


The Founding Fathers, in their wisdom, are speaking to us today. 
That is why the Constitution they wrote requires the consent of the 
United States Senate before any person is appointed to the Su¬ 
preme Court and receives the awesome power to have the last word 
about the meaning of the Constitution in our daily lives. 

America does not want to go back to the more troubled days of 
the past or reopen the settled issues of the last 30 years. Based on 
his record of a lifetime and the record of these hearings, that is the 
direction in which Judge Bork is likely to seek to take this country, 
and that is a direction in which America should not and must not 
g°- 

I urge the Senate Judiciary Committee to vote to reject this nom¬ 
ination, and if the White House chooses to press it to a vote on the 
Senate floor, I urge the Senate to reject it. 

We will recess for a few moments, subject to the call of the chair. 

[Recess.] 

The Chairman. The hearing will come to order. 

A couple of things necessary to close the public hearings out. 
Senator Thurmond informs me that he has checked with all of his 
Republican colleagues, and I have with our Democratic colleagues. 
It is agreed that the vote will be—we will not meet tomorrow. That 
meeting will be canceled. 

We will meet October 6th, Tuesday, at 2:00 p.m., at which time 
we will vote. I am sure there will be some discussion, but we will 
vote on the nomination of Robert H. Bork to the Supreme Court of 
the United States of America. 

And we are seeking a unanimous consent agreement on the floor 
so no one will object to our meeting. The only thing that could pos¬ 
sibly change the time would be if somehow there was objection on 
the floor and we had to move the hearing up because of the Senate 
rules, but I don’t anticipate that. 

We had a number of statements and letters submitted to the 
committee for inclusion in the record and they will be included. 

The Chairman. The record will be held open to receive state¬ 
ments from a number of witnesses who have asked to submit testi¬ 
mony. 

I yield to any of my colleagues who might like to make a com¬ 
ment or statement. Senator Thurmond. 

Senator Thurmond. Thank you, Mr. Chairman. Senator Hum¬ 
phrey earlier said he would submit for the record a memorandum 
rebutting the attacks on Judge Bork’s judicial record made by Ari¬ 
zona attorney John P. Frank. 

I ask that the staff memorandum on that point submitted by 
Senator Humphrey be made a part of the record. 

The Chairman. Without objection. 

[Information follows:] 



3876 


Response to Submission bv John P. Frank 

In a written submission to the Senate Judiciary Committee, 
John P. Frank alleges that Judge Bork is a judicial activist, 
hostile to the rights of minorities, and in favor of limited 
first amendment speech protections. He bases these and other 
subsidiary conclusions on his reading of Judge Bork's opinions 
for the United States Court of Appeals for the District of 
Columbia Circuit. The charges are not supported by the evidence. 

After noting that Judge Bork has written "a little more than 
a hundred published opinions" during his five and one-half years 
on the U.S. Court of Appeals, Hr. Frank makes the outlandish 
accusation that Judge Bork "is not a big or fast producer, and 
there is a real question about his ability to cope with the 
Supreme Court workload.'* The evidence tells a different story. 

In five and one-half years on the D.C. Circuit, Judge Bork has 
written 117 majority opinions for the court. During the same 
five and one-half year period, Judge Ruth Ginsburg wrote 111 
majority opinions. Judge Mikva 126, and Judge Wald 148. A 
recently published study of D.C. Circuit decisions for a one-year 
period between May 1986 and June 1987 calculated the average 
length of time each judge took to issue an opinion from the date 
of oral argument. According to this study. Judge Mikva took an 
average of 4.8 months to issue an opinion, Judge Buckley 6 
months. Judge Bork 6.2 months and Judge Robinson 35.8 months. 
While the study does not include Judge (now Justice) Scalia, he 
took an average of 7.8 months to issue an opinion during his last 
year on the D.C. Circuit. 

Mr. Frank restricts his analysis to twenty cases. He 
concedes that "so small a sample cannot [provide] a full 
picture." In fact. Judge Bork participated in 416 cases from the 
time of his appointment to the appellate court until his 
nomination. He joined the majority 95 percent of the time. He 
wrote the majority opinion in 117 cases, and dissented on average 
in only four cases per term. In his five and a half year tenure 
on the Court of Appeals, the Supreme Court has, with just one 
exception, denied certiorari in every appeal from his majority 
decisions, and six opinions by Judge Bork—three dissents and 
three dissents from denial of rehearing en banc—have been 



3877 


reviewed and in large measure adopted by the Court. 

It cannot seriously be claimed that a judge who joins with 
the majority in 396 out of 416 cases, is successfully upheld by 
the Supreme Court six times, has never been reversed by the 
Supreme Court, and is reversed by the D.C, Circuit but once in an 
opinion written by Judge Boric himself, can be guilty of the 
misconduct alleged by Mr. Frank. If Mr. Frank’s charges against 
Judge Bork were true, surely Judge Bork's "activism" and his 
hostility to constitutional liberties would have prompted his 
colleagues on the appellate bench and the Supreme Court to 
correct his erring ways. At bottom, Mr. Frank f s submission 
proves only that an arbitrary selection of cases, often unrelated 
and misleadingly summarized, can completely distort even an 
appellate record as remarkable as Judge Bork's. 

As to the specific categories singled out by Mr. Frank, an 
examination of the complete record rebuts the charges. 

I. THE FIRST AMENDMENT 

In the area of first amendment freedom of speech. Judge Bork 
issued a decision widely hailed as one of the most important in 
the past twenty years, extending the protection of the first 
amendment in light of the growing threat and reality of libel 
suits against newspapers. 1 * * * He ordered the D.C. subway system to 
display an anti-Reagan poster.^ He has protected broad 

categories of speech from censorship, including commercial 
3 4 

speech, scientific speech, and the speech of general cable 
television programmers. 5 He has repeatedly made the principled 
argument that first amendment protection of the freedom of the 
press should extend as well to the broadcast media.^ 


Oilman v. Evans . 750 F.2d 970 (1984) (Bork, J., concurring). 

2 

Lebron v. Washington Metropolitan Transit Authority . 749 F.2d 
893, 896 (D.C. Cir. 1904). 

1 FTC v. Brown & Williamson Tobacco . 778 F.2d 35 (D.C. Cir. 1985) 

4 

McBride v. Merrell Dow and Pharmaceuticals Inc. . 717 F.2d 1460 

(D.C. Cir. 1983). 

5 Quincy Cable TV v. FCC . 768 P.2d 1434 (D.C. Cir. 1985). 


Branch v. FCC . No. 86-1256, slip op. (D.C. Cir., July 21, 
1987); TRAC v. FCC . 801 P.2d 501 (D.C. Cir. 1986); Lovedav v 
FCC . 707 F.2d 1443 (D.C. Cir.), cert, denied . 464 U.S. 1008 
(1983). 



3878 


Mr. Frank ignores or mischaracter izes these decisions. 
Instead, he focuses on Finzer v, Barry , where a conservative 
action group challenged a D.C. ordinance prohibiting hostile 
picketing within 500 yards of an embassy, Mr. Frank criticizes 
Judge Bork’s majority opinion in Finzer v. Barry , which upheld 
the constitutionality of the statute, as "an extraordinary 
restriction of First Amendment freedoms." This characterization 
is extravagent. The lav in question was enacted by Congress, 
signed by one President and enforced by his successors, upheld 
several years ago by a unanimous panel of the United States Court 
of Appeals, upheld again by the local District of Columbia 
courts, upheld by the District Court in Finzer , and upheld by a 
majority of the panel which heard the appeal. If his ruling in 
Finzer places Judge Bork at the extreme end of some spectrum, 
then it is only fair to note that that end is crowded with 
Congressmen, Presidents, and other judges as well. 

In any event, the statute at issue in Finzer arose in a 
special context: international lav, including a treaty to which 
the United States is a signatory, requires that host governments 
protect foreign embassies from violence and insult. Adherence to 
our international obligations was held by the Court to constitute 
a sufficiently compelling interest to justify a restriction on 
speech limited to a five hundred foot radius around foreign 
embassies in Washington D.C. The Court took seriously the 
government's statement that diminishing the protection we accord 
foreign embassies would lead to reciprocal withdrawals of 
protection of our diplomats abroad, and also gave weight to the 
fact that American police are forbidden from entering foreign 
embassies without express permission. 

Mr. Frank appears to concede most of this. His only real 
complaint is that even though our international obligations 
require only that we forbid hostile demonstrations, we ought to 
forbid friendly ones as well in order to be evenhanded. This was 
the position of the dissent. The majority was persuaded. 



3879 


however, that increasing the amount of speech to be prohibited 
would render the regulation more constitutionally problematic* 
This is certainly an issue over which reasonable men and women 
can differ, but it is somewhat ridiculous to chastise a judge for 
being insensitive to first amendment values because he declined 
to require Congress to ban more speech than was currently 
prohibited. 

Mr. Frank's criticism of Telecommunications & Research 
Action Center v. FCC, 801 F.2d 501 (1986) { TRAC ) f ignores the 
legal issues and misrepresents the case. In TRAC, Judge Bork 
reaffirmed his belief that the first amendment requires freedom 
from state control over the editorial decisions of the media and 
at the same time solidly demonstrated that he will faithfully 
apply precedent with which he disagrees. The case involved a 
challenge to the FCC's decision not to apply certain forms of 
political broadcast regulation, such as the fairness doctrine, to 
a new medium called teletext, which is textual programming 
broadcast over previously unused portions of the broadcast 
spectrum. 

In TRAC, Judge Bork explicitly set forth the view that the 
broadcast media are as fully entitled to the protection of the 
first amendment as the print media. Like Oilman v. Evans, 750 
F.2d 970 (D.C. Cir. 1984), this is a classic illustration of how 
Judge Bork’s judicial philosophy allows and indeed requires him 
to apply the original meaning of the first amendment to modern 
conditions that the Framers could not have foreseen. 

In the end, the majority opinion in TRAC , which Judge Scalia 
joined, is a vote for the public interest and the First 
Amendment. The Court held that Congress did not codify the 
Fairness Doctrine, and that the FCC acted within its discretion 
in concluding that the public interest was best served by not 
subjecting a new broadcast technology, teletext, to fairness 
doctrine obligations. 

Mr. Frank completes his free speech analysis with the charge 
that Judge Bork's decision in Lpveday v. FCC / 707 F.2d 1443 (D.C. 
Cir. 1983), "nullifies the right of the public to know who is 
behind the propaganda they receive." Mr. Frank also says the 



3880 


case shows Judge Bork to be untroubled by the "possibility that 
economic power may control communication." Neither the facts of 
the case nor Judge Bork’s opinion support these misleading 
accusations. The tobacco industry sponsored public 
advertisements opposing an initiative campaign directed at 
tobacco interests. The FCC ruled that the Communications Act did 
not require the industry to identify itself as the sponsor of the 
ads. Hr. Frank is no doubt avare that Congress delegated broad 
authority to the FCC to regulate the airwaves. Hr. Frank 
therefore must also be aware that in reviewing FCC decisions a 
judge does not decide whether "economic power" in this country 
"controls" communication, whatever that may mean. Nor is the 
1934 Communications Act a disclosure act dealing with the 
public's "right to know" who sponsors advertisements. 

II. THE INTERESTS OP MINORITIES 

In the instance of "minorities," Mr. Frank admits the "cases 
are too diverse to permit much generalization." Yet this does 
not stop him from making the unfounded charge that "one way or 
another, the minorities regularly and routinely lose." This 
loose and reckless charge implies a racial bias nowhere in 
evidence in Judge Bork's five year tenure on the court. It is 
contradicted by Judge Bork's often stated view that race stands 
at the core of the fourteenth amendment prohibition on denial of 
due process or the equal protection of the laws. And the 
"evidence" supporting Mr. Frank's characterization—three FCC 
cases, one civil complaint against the police department, and a 
case turning on standing doctrine — in no way establishes the 
proposition for which it is offered. 

To begin with, the citation of FCC cases having nothing to 
do with civil rights as somehow demonstrating hostility to 
minorities surpasses even the broadly tolerant bounds of heated 
partisan debate. Judge Bork wrote for the majority in all three 
FCC cases, and two of three were unanimous opinions. Indeed, in 
all three cases, it was Congress' delegated arm, the Federal 
Communications Commission, that initially held against 
petitioners. At bottom, Mr. Frank accuses Judge Bork (and by 
association the D.C. Circuit and the FCC) of racist insensitivity 



3881 


for no other reason than that minority petitioners were denied 
the relief they requested in administrative law cases. Mr. Frank 
makes no mention of the legal issues at stake and offers no 
defense on vhat appears to be his remarkable assumption that 
petitioners before the FCC deserve special treatment based on the 
color of their skin. 

Mr. Frank mischaracteriz.es Black Citizens for a Fair Media 
v. FCC, 719 F.2d 407 <D.C. Cir. 1963) as a "discrimination” case. 
The issue in that case involved an across-the-board change by the 
FCC in its license renewal system, not any kind of discrimination 
against any minority group. In the past, the FCC had required 
broadcasters to file extensive paperwork with renewal 
applications. The Commission subsequently concluded that most 
filings satisfied or exceeded operating guidelines, and that 
public comments against a broadcaster's programming were the best 
vehicle for bringing violations to the FCC's attention. 

Therefore, the Commission sought to simplify its renewal 
procedures to make filing more efficient, while continuing to 
rely on public participation as the primary means of detecting 
violations of the public service obligation. 

Judge Bork’s opinion for the majority held that the FCC did 
not violate the Communications Act or the Administrative 
Procedure Act by modifying the renewal system. Significantly, 
the majority noted that the FCC did not intend through the new 
system to establish a lower and more lenient standard for 
broadcasters. On the contrary, the Commission believed that it 
could maintain its historical high degree of broadcaster 
compliance with the streamlined system. 

Mr. Frank also plays fast and loose with National Latino 
Media Coalition v. FCC . 816 F.2d 785 (D.C. Cir. 1967), by 
asserting that Judge Bork "refused” to decide the case — thereby 
conveying the implication that this refusal was motivated by the 
fact that some of the plaintiffs represented a minority group. 

In fact, the unanimous panel opinion simply concluded that the 
plaintiff's case was not ripe for review by the D.C. Circuit 
because the FCC had never attempted to enforce the disputed rule 
regarding lotteries for broadcast licenses. Judge Bork's opinion 



3882 


for the court stated explicitly that "if a tie-breaker lottery is 
[ever] used to resolve some future proceeding, the aggrieved 
applicant at that time will be fully able to seek review of the 
Commission's actions in this court." 816 F.2d at 789. Ample 
Supreme Court precedent dictated that the D.C. Circuit not review 
the case until the agency decision was final — and Mr. Frank 
does not contend otherwise. 

Similarly, Mr. Frank suggests that in ICBC Corp. v. FCC , 

716 F. 2d 926 {D.C. Cir. 1983), Judge Bork ruled against the 
plaintiff because he did not want to allow a "black oriented AM 
radio station to expand into the night time to give more minority 
coverage." Statement at 8. In fact, the black-owned station 
asked the FCC to waive its rule designed to prevent signal 
interference among AM radio stations. Judge Bork’s opinion for 
the court affirmed the FCC’s denial of the waiver after 
concluding that the agency had given "meaningful consideration" 
to the station’s nontechnical, service-related arguments for the 
waiver. 

Mr. Frank also cites Judge Bork’s decision in Carter v. 
District of Columbia . 795 F.2d 116 (D.C. Cir. 1986), as proof of 
his prejudice against minorities. In an opinion authored jointly 
by Judges Ruth B. Ginsburg and Bork, the court unanimously held 
that evidence of five instances of police misconduct and of the 
deaths of seven persons involved in confrontations with the 
police did not suffice to show a policy of deliberate police 
misconduct on the part of the city. Mr. Frank appears to suggest 
that the court erroneously failed to find an established policy 
of police misconduct. But this ignores the controlling Supreme 
Court precedent that a municipality may be subjected to liability 
under § 1983 not "based on theories of respondeat superior," but 

only on "a fault-based analysis." Oklahoma City v. Tuttle . _ 

U.S. _ (1985). Thus, in the absence of an express municipal 

policy, a plaintiff must show a course deliberately pursued by 
the city, "as opposed to an action taken unilaterally by a 

nonpolicymaking municipal employee." Id. at _The opinion by 

Judges Ginsburg and Bork carefully applies these principles to 
the case at hand, concluding: "If the evidence plaintiffs 



3883 


presented here were adequate to make out a § 1983 case, then 
practically every large metropolitan police force, it would seem, 
could be targeted for such liability." 795 F.2d at 123. 

Mr. Frank also objects to Judge Bork's opinion in Haitian 
Refugee Center v. Gracey, 809 F.2d 794 (D.C. Cir. 1987), which 
held that a third-party refugee center had no standing to 
challenge the Coast Guard’s policy of stopping on the high seas 
Haitian aliens suspected of attempting to migrate to the United 
States illegally. Mr. Frank asserts that "there would appear to 
be clear standing within the rule of Havens Realty Corp . v. 
Coleman . 455 U.S. 363 (1982)." But Judge Bork did apply Havens , 
and in fact found that the Center had alleged an injury sufficent 
to confer standing. What Professor Frank fails to mention, 
however, is that the injury requirement is but one component of 
the Supreme Court's well-established test for standing to sue. 
Applying that test. Judge Bork found that the Center had neither 
satisfied the causation requirement for standing nor shown that 
it was a proper party to raise the legal rights and interests of 
third parties not before the Court. 

III. JUDICIAL ACTIVISM 

Mr. Frank's charge of "judicial activism" is entirely 
unpersuasive. Typically, it is said, a "judicial activist" 
imposes his own preferences instead of applying the law. Judge 
Bork, by contrast, has dedicated his legal career to the twin 
goals of keeping the courts within their properly limited sphere 
in a democratic society, yet aggressively applying the 
understanding of Congress and the Framers and Ratifiers to 
protect rights granted under law. That is the antithesis of 
judicial activism, and it explains why, to substantiate his 
implausible claim, Mr. Frank is reduced to crudely labelling 
several of Judge Bork's opinions as examples of "activism" and 
"policymaking." 

In Crowley v. Schultz . 704 F.2d 1269 (1903), Judge Bork, 
joined by Judge Wright and Judge Edwards, disposed of a claim by 
plaintiffs to attorney's fees under the Back Pay Act. Appellants 
filed their suit at a time when the Back Pay Act made no 
provision for attorney's fees. In 1978, the Civil Service Reform 



3884 


Act augmented Back Pay Act relief to include "reasonable attorney 
fees," but Congress specifically barred payment of attorney's 
fees in administrative proceedings commenced prior to passage of 
the Reform Act. After a careful and searching inquiry of the 
Reform Act's structure and legislative history. Judge Bork found 
on behalf of a unanimous court that the plaintiffs were not 
entitled to reimbursement. 

Mr. Frank has no quarrel with this decision, yet he cites 
Crowley as evidence of Judge Bork's willingness to ignore 
Congress's will solely on the basis of a concurring statement by 
Judge Bork. That concurrence was written to make it clear that 
no decision was rendered directly on the Back Pay Act, "lest an 
apparent misreading of the Back Pay Act becomes established law 
through inattention." Mr. Frank would mischaracterize this 
clarification as a holding, whereas in fact Judge Bork was 
engaging in the common — and entirely appropriate — judicial 
practice of making clear both what the court has and has not 
decided in a given case. 

Mr. Frank makes the untenable claim that Judge Bork ignored 
"a very clear statute" in Mcllwain v. Haves . 690 F. 2d 1041 (D.C. 
Cir. 1982). In reality. Judge Bork's majority opinion for the 
court adhered faithfully to the explicit language of the Food, 
Drug and Cosmetic Act, which requires manufacturers to show that 
color additives for food are safe before they can be sold. 
Congress created an exception to the Act that allowed additives 
to be sold for a "transitional" period while manufacturers tested 
their safety, and gave the FDA discretion to extend the 
transitional period, consistent with public health and continued 
testing. The plaintiffs argued that the FDA had violated the law 
by extending the transitional period several times. The D.C. 
Circuit, with Judge Bork writing for the majority, upheld the 
agency because the statute set no limit on the number or duration 
of extensions allowed. Thus, the statute was indeed "very 
clear" — but its clear meaning is not the one urged by 
Mr, Frank. 

Jersey Central Power & Light Co. v. Federal Energy 
Regulatory Commission . 810 F. 2d 1168 (D.C. Cir. 1987), also 



3885 


cited by Mr. Frank, is hardly an example of "judicial activism." 
Jersey Central made a substantial investment in a nuclear power 
plant, but when the project was no longer feasible Jersey Central 
abandoned the plant, and thereby its investment. In an attempt 
to recover its unamortized costs, Jersey Central asked FERC if it 
could include them in its rate base, with a rate of return 
sufficient to cover carrying charges on its debt and on the 
preferred stock portions of that unamortized investment. In 
response, FERC issued an order that summarily and without 
explanation excluded the unamortized portion of the investment 
from the rate base. Jersey Central appealed to the D.C. Circuit, 
and in its first encounter with the case, a unanimous panel 
affirmed FERC, holding that the "end result" test that requires a 
rate order to be "just and reasonable" applies only to those 
assets which FERC rules allow to be included in the rate base. 

After the initial opinion was issued, a majority of a panel 
exercised its discretion to grant rehearing, because the panel 
found FERC's response to Jersey Central’s petition seriously 
deficient. The panel concluded that, under the "end result" 
test, Jersey Central’s allegations that FERC’s order would 
prevent it from access to the capital markets and could bankrupt 
it entitled Jersey Central to a hearing at which the truth of 
those representations could be assessed. The en banc court then 
reheard the case, and Judge Bork's majority opinion reached this 
same conclusion. 

Mr. Frank gives the misleading impression that the opinion 
for the court held for the utility on the merits, when in fact 
the opinion simply granted a hearing to resolve the issue. Apart 
from that, Mr. Frank makes no attempt to challenge Judge Bork’s 
persuasive analysis of why the "end result" test provides more 
protection for a utility's ability to attract capital and remain 
solvent than FERC's grudging interpretation of that test would 
have allowed. 

Mr. Frank's criticism of Rotherv Storage & Van Co. v. Atlas 
Van Lines, Inc. . 792 F.2d 210 (D.C. Cir. 1986), grossly distorts 
the holding in that case, which involved a refusal by a national 
van line to contract with local carrying agents on terms that the 



3886 


van line found unacceptable. Mr. Frank's assertion that the 
opinion approves the legality of a "boycott" makes misleading use 
of that charged term. As Judge Bork made clear, any agreement to 
deal on specified terms is in a sense a boycott of those who will 
agree only to other contractual terms. Further, the Supreme 
Court's decision in Northwest Wholesale Stationers v. Pacific 
Stationery & Printing . 105 S. Ct. 2613 <1986), clearly mandated 
that the challenged arrangement in Rothery be measured according 
to the "rule of reason" — that is, upheld as lawful if it had 
procompetitive, rather than anticompetitive, effects — rather 
than deemed invalid per se. 

In ruling that the challenged arrangement was unlikelty to 
have anticompetitive effects. Judge Bork gave great weight to the 
fact that Atlas Van Lines held merely six percent of a market 
that, measured by Justice Department guidelines, had a 
competitive structure overall. (Mr. Frank’s comparison of Atlas 
Van Lines' market power to the monopoly power of John D» 
Rockefeller's standard oil is, for this reason, rather 
mystifying.) Judge Bork's holding that the challenged 
arrangement was lawful thus rested primarily on the 
uncontroversial conclusion that Atlas Van Lines did not have the 
market power to impose an anticompetitive result, and only 
secondarily on the finding that the arrangement at issue had 
efficiency-producing potential. Contrary to Mr. Frank's 
assertion. Judge Wald did not dissent from Judge Bork’s opinion, 
but concurred "in the result and in much of the reasoning." 792 
F.2d at 230. Judge Ruth Bader Ginsburg joined Judge Bork's 
opinion in full, the Supreme Court denied certiorari . 107 S. Ct. 

880 (1987). 

Mr, Frank attacks Judge Bork's opinion in Lebron v. WMATA as 
"activist" because of a statement that "in extreme situations 
prior judicial restraint on the basis of falsity may be 
appropriate." 749 F.2d at 899 (emphasis in original). Mr. Frank 
states that Judge Bork "cites no authority for this proposition." 
Statement at 6. This is simply untrue. Immediately following 
Judge Bork's statement is a citation to Tomei v. Finley , 512 F. 
Supp. 695 (N.D. Ill. 1981) and an explanation that in that case a 



3887 


court granted a preliminary injunction forbidding the use in 
political advertising of the acronym ’REP’ by the Representation 
for Every Person party because the acronym falsely implied 
affiliation with the Republican party. 

Moreover, Mr. Frank takes Judge Bork’s sentence wholly out 
of context* Judge Bork was contrasting an administrative 
agency’s prior restraint unfavorably with a prior judicial 
restraint which, in some extreme cases, may in fact be 
constitutionally permitted because the individual has the benefit 
of judicial review of the government’s action. Not content 
merely to find that the prior restraint was unconstitutional 
because WMATA’s judgment was simply wrong — the objected to 
advertisement was not misleading — Judge Bork was going further 
and attacking WMATA's general practice. Indeed, this was 
activism, not improper activism "strikting] at the vital heart of 
the free speech concept" as Mr. Frank falsely suggests, but 
legitimate activism in defense of the First Amendment. 

Mr. Frank also cites Dronenburq v. Zech , 746 F.2d 1579 (D.C. 
Cir, 1984), as "the best known example of Judge Bork’s 
extremism." Statement at 7. This is a suprising conclusion 
indeed. Two years after Judge Bork's opinion in Dronenburq held 
that neither the Constitution nor the Supreme Court’s privacy 
decisions prevented the Navy from discharging a homosexual, the 
Supreme Court held in Bowers v. Hardwick, 106 S. Ct. 2841 (1986), 
that the state may constitutionally prosecute a homosexual under 
its sodomy lavs — and Justice Powell joined in that holding. 

What is more. Judge Bork did not use Dronenburq as an 
"occasion for a wholly gratuitous discourse on all of the Supreme 
Court's privacy opinions of the last twenty-five years." 

Statement at 7. The plaintiff in Dronenburq argued that those 
cases compelled a determination in favor of a homosexual officer 
discharged from the Navy for having sexual relations with an 
ensign. To have disposed of the case without meeting counsel’s 
arguments would have produced (justifiable) howls of indignation 
from the plaintiff that the judges were ruling by fiat. 

IV. HEALTH & SAFETY 

Mr. Frank makes the absurd charge that Judge Bork opposes 



3888 


nuclear safety, and nowhere is Mr. Prank's bias against Judge 
Bork more apparent than in his diatribe concerning Judge Bork's 
majority opinion in Bellotti v. NRC . 725 P.2d 1380 (D.C, Cir. 
1983). The NRC had issued an order amending Boston Edison’s 
license to operate its Pilgrim Nuclear Power Station. The 
amendments required Boston Edison to develop a plan to remedy 
deficiencies in its management of the plant. Boston Edison did 
not challenge the order, but the Attorney General of 
Massachusetts — who supported the order — attempted to 
intervene to obtain a hearing in order to argue that additional 
restrictions and conditions should be added to Boston Edison's 
license. The relevant statute allows intervention by "any person 
whose interest may be affected by the proceeding." The NRC 
denied intervention on the grounds that the only issue it would 
consider in this particular enforcement proceeding was whether 
its order should be sustained — not the broader issues the 
Attorney General wished to raise — and that therefore this 
"proceeding" did not adversely affect the interests the Attorney 
General sought to represent. 

Thus, as both Judge Bork's majority opinion and Judge 
Wright's dissenting opinion recognized, the issue before the 
court was not whether the Attorney General of Massachusetts could 
intervene if the proceeding included consideration of the broad 
issues he sought to raise. If the proceeding had included those 
issues, intervention would have been appropriate. The crucial 
question, therefore, was whether the NRC could limit the scope of 
the proceeding, as it claimed to have done, to whether its order 
should be sustained — so that a hearing would need to be held 
only if the utility or some intervenor chose to oppose that order 
(which no one did). 

Judge Bork held for the majority that the NRC possessed the 
authority to limit the scope of the proceeding in this manner. 

But that ruling was extremely narrow. As Judge Bork pointed out, 
the Attorney General could petition the NRC to modify Boston 
Edison’s license, and thus was "in no sense left without recourse 
by the NRC’s denial of intervention." 725 F.2d at 1382. 
Furthermore, "automatic participation at a hearing may be denied 



3889 


only when the Commission is seeking to make a facility's 
operation safer. Public participation is automatic with respect 
to all Commission actions that are potentially harmful to the 
public health and welfare." M. at 1383 (emphasis added). 

Mr. Frank never mentions the narrow issue before the 
court — whether the nrc could define what issues would be 
addressed in one of its own proceedings -- nor does he mention 
the important limits on the court’s holding. Instead, he makes 
two claims: first, that "Judge Bork is not inclined to extend 
himself much in favor of nuclear safety," and second, that "Judge 
Bork’s opinion holds that the attorney general should be excluded 
because there is insufficient interest in behalf of the people of 
the state to permit him to participate." As to the first claim, 
it suffices to note that judges are not supposed to "extend" 
themselves in order to rule in favor of one side or the other; 
judges are expected to interpret and apply the law impartially. 

As to the second claim, it is clear that Judge Bork believed, as 
his opinion states, that the Attorney General did have a 
sufficient interest "in behalf of the people of the state" to 
support a petition to have the NRC make additional changes to 
Boston Edison's license. The issue was not the sufficiency of 
the Attorney General’s interest, but whether that interest had 
been raised in the proper proceeding. The court did no more than 
rule that the Attorney General had chosen the wrong proceeding in 
which to air these issues. Whether one agrees or disagrees with 
that ruling, it obviously does not stand for the sweeping 
contention Mr. Frank imputes to Judge Bork — that "there was no 
public interest in letting the people be heard." 

Mr. Frank is also critical of Judge Bork’s opinion in San 
Luis Obispo Mothers for Peace v. NRC . 789 F.2d 26 (D.C. Cir. 
1986). Significantly, Mr. Frank does not undertake to discuss, 
or even bother to identify, the legal issues in the case. 

Instead, Mr. Frank simply recites the facts and concludes that 
Judge Wald's dissent "is extremely persuasive." Of course, 
judges not infrequently differ in deciding whether an agency's 
application of its own regulations is consistent with the 


3890 


language of the regulations and is not arbitrary and capricious* 
But that is not evidence of extremism, and the reasonableness of 
Judge Bork’s position is borne out by the fact that Judges Mikva 
and Edwards, two of the court’s more liberal judges, joined his 
opinion. 

Mr. Frank similarly oversimplifies and mischaracterizes 
Judge Bork’s decision in American Cvanamid , 741 F.2d 444 (D.C. 
Cir. 1984). The issue in the case was not, as Mr. Frank 
suggests, whether "the way to keep the plant safe was to deprive 
women of their childbearing capacity.” Statement at 15. The 
Administrative Law Judge’s findings of fact in a related 
proceeding, together with an opinion by the Court of Appeals 
concerning the technological infensibi1ity of reducing lead 
levels past a certain point in the lead pigment industry, led 
Judge Bork to conclude that the employer could not reduce the 
lead levels in its lead pigment department to make it safe for 
fetuses. The issue was simply whether, under these circum¬ 
stances, the company had exposed the women to n recognized 
hazards” under the Occupational Safety and Health Act by adopting 
a policy that women in their childbearing years could not work in 
the department unless they were sterile, and by telling them that 
they could be surgically sterilized. The issue was not whether 
the women could be sterilized or whether they should be 
compensated for having undergone sterilization. The women had 
been sterilized years before, and a Title VII sex discrimination 
claim had already been settled with the women receiving a 
substantial sum. The only thing at stake before Judge Bork was 
whether the company had violated the OSHA Act and was required to 
pay to the federal government — not to the women — a $10,000 
fine. To suggest that Judge Bork’s sensitive opinion — which is 
full of expressions of concern for the "most unhappy choice" to 
which the women were put — endorsed sterilization as a means of 
keeping the plant safe is to engage in demagoguery of the worst 
kind. 

V. MISCELLANEOUS CASES 

Mr. Frank also criticizes Judge Bork’s unanimous opinion in 
FTC v. Brown and Williamson Tobacco Co. . 776 F.2d 35 (1985), in 



3891 


which Judge Edwards and then Judge Scalia joined. A manufacturer 
of low-tar cigarettes had claimed its cigarettes delivered only 
one milligram of tar. A standard FTC test measuring tar 
supported this claim — but evidence shoved that actual smoking 
by persons, not FTC machines, delivered tar in the range of three 
to seven milligrams. The trial court found that the 
manufacturer’s one milligram claim, though literally true, was 
inherently deceptive. Judge Bork’s opinion expressly recognized 
the first amendment protection accorded commercial speech, upheld 
the lower court order enjoining the manufacturer from advertising 
that its cigarette delivers one to two milligrams of tar, and 
flatly rejected the manufacturer’s claim that the law required 
direct survey evidence of consumer deception. 

nonetheless, Mr. Frank find something to criticize — that 
part of Judge Bork’s opinion overturning one aspect of the 
district court injunction which prohibited the manufacturer from 
devising a new testing system to measure tar, even if the 
manufacturer clearly informed consumers that the test differed 
from the commonly used FTC procedure (which has never purported 
to be the only lawful testing method). This ruling was a careful 
effort to ensure that constitutional speech was not impermissibly 
burdened by a prior restraint, yet Mr. Frank derides it as 
"mechanical" or "part of a spirit which wishes to nullify public 
health and safety regulations." That criticism demonstrates a 
failure to understand the constitutional dimensions of prior 
restraints on speech, and distorts the facts in a case broadly 
protective of consumer rights. 

Mr. Frank’s criticism of Judge Bork’s opinion in United 
States v. Singleton . 759 F.2d 176 (D.C. Cir. 1985), rehearing en 
banc denied, 763 F.2d 1432, is too conclusory to merit extended 
treatment. Mr. Frank claims that this case is "a good example of 
dealing with criminal matters as though they were simply puzzles 
or games and not problems of individual responsibility and 
individual liberty." Quite the contrary. Singleton involved the 
issue whether evidence that had already been determined 
sufficient to support a guilty verdict in a criminal case could 
be excluded on a subsequent motion to suppress following the 


88-374 0 - 89-38 



3892 


grant of a new trial. Joined by Judge Scalia, Judge Bork held 
that the "law of the case doctrine" required that the evidence be 
admitted, because "reliability is the test both for the 
sufficiency of the evidence to support a verdict and for the 
admissibility of evidence to survive a motion to suppress," and 
because there was no reason why "reliability should be judged 
differently" as between these two inquiries. 763 F.2d at 1433. 
This emphasis on the substantial identity of the two tests looks 
through legal technicalities to the heart of the issue. That is 
hardly the kind of formalism that would justify Mr. Frank's 
remark. 

Finally, Mr. Frank takes issue with Judge Bork's opinion in 
Restaurant Corp, of America v. NLRB . 801 F.2d 1390 (D.C. Cir. 
1986), which denied enforcement to an NLRB decision that an 
employer committed an unfair labor practice by discharging two 
employees for engaging in union solicitations in violation of the 
employer's no-solicitation rule, while permitting non-union 
collections among employees for birthday and going away gifts. 
Prior to this case, the Board had never based a finding of 
disparate enforcement on the kind of social solicitations 
involved here. Indeed, on several occasions, the Board expressly 
declined to make such a finding on the basis of virtually 
identical facts. As Judge Bork's opinion pointed out, the Board 
offered no explanation for its departure from its past precedent. 
Under settled principles of administrative law, that failure 
required the court to deny enforcement of the Board's order. 

Judge (now Justice) Scalia, a noted scholar and jurist in the 
field of administrative law, fully agreed with Judge Bork's 
position and concurred in his opinion. 



3893 


Senator Thurmond. Mr. Chairman, I would like to request that 
we leave the record open for submission of testimony by any group 
that requested to testify but was unable to do so due to the length 
of the witness list. 

Some of those groups that have contacted me and requested to 
testify in favor of the nomination of Judge Bork were New Yorkers 
for Bork, National Association of Evangelicals, Washington Legal 
Foundation, National Institute for Government and Politics, Citi¬ 
zens for God and Country, Citizens for Decency for Law, the Herit¬ 
age Foundation, as well as a number of others. 

The Chairman. Without objection, they will all be entered into 
the record. 

Senator Thurmond. Now, Mr. Chairman, is that everything? Is 
the hearing complete now? 

The Chairman. Yes. I would just like to thank some staff, but I 
think the Senator from Alabama wants to make a statement, also. 

Senator Heflin. Well, Mr. Chairman, this brings us to the close 
of these hearings and I first want to commend you for the fairness 
by which you have conducted these hearings. 

The Chairman. Thank you. 

Senator Heflin. We have heard a lot of charges and all sorts of 
misrepresentations, I am referring to before the hearings started 
and I might say that there were a lot of distortions and inaccura¬ 
cies published about you and how you would conduct the hearings. 

I think that everybody throughout the hearings has felt that you 
have been completely fair. I think that everybody on the Republi¬ 
can side. The Democratic side and that third element, the undecid¬ 
ed side, will say that you have been completely fair, and I appreci¬ 
ate your fairness in this. 

You have had a number of things that have happened, but I 
don’t think anything has influenced your decision and done any¬ 
thing that would make it anything other than completely impar¬ 
tial. 

The Chairman. Thank you. 

Senator Heflin. And 1 would like to say as a point of personal 
privilege that I have been in this caucus room now on Contra and 
Iran arms hearings and these hearings, and it seems to me that I 
have been in this caucus room or somewhere under the Craig lights 
and these television lights. 

And I will say that I will be delighted to leave it and my eyes 
may be able to revert back to 20-19 as a result of it. So I am de¬ 
lighted that it has come to an end, but I do appreciate your effort. I 
appreciate Senator Thurmond’s effort. As always, he is very ener¬ 
getic, always asks good questions. 

I think the whole committee has performed well, with maybe my 
exception, but I do feel like the hearings have been informative, 
helpful, and very impartially conducted. 

The Chairman. I thank my colleague. 

Senator Thurmond. 

Senator Thurmond. Mr. Chairman, in concluding I just want to 
take a minute and give a little resume and then make a statement. 
Some of the individuals who testified on behalf of Judge Bork are a 
former President of the United States, Gerald Ford; a former Chief 
Justice of the United States, Warren Burger. 



3894 


Then we had six former Attorneys General—Edward Levi, Grif¬ 
fin Bell, Elliot Richardson, William French Smith, Herbert Brow¬ 
nell, and William Rogers; and Lloyd Cutler, a former counsel to 
President Jimmy Carter. 

We had two governors, Governor James Thompson of Illinois, 
and Governor Thornburgh of Pennsylvania. We had seven law 
school deans who testified yesterday, and representatives of eight 
national law enforcement organizations with a membership of over 
500,000 members. 

We had a large number of former presidents of the American 
Bar Association. We had a former HUD Secretary, Carla Hills. We 
had three former deputy solicitors general and two former assist¬ 
ant attorney generals for antitrust, among many others. 

Now, Mr. Chairman, in closing I want to say that I think the 
hearings have been worthwhile and good, and I want to associate 
myself with the statement made by Senator Heflin. And I want to 
take this opportunity to express to you my sincere appreciation for 
the fair and reasonable manner in which you handled these hear¬ 
ings. 

I don’t know of anyone who would have conducted it in a fairer 
manner than you did. I have always found you to be fair when you 
were the minority member and I was chairman, and since you have 
been chairman and I am the minority member, I have found you 
reasonable and it has been a pleasure to work with you. 

In conducting these hearings, you have stood by your reputation 
for being fair and just and reasonable. 

The Chairman. Well, thank you. I thank all my colleagues, and 
particularly you and Senator Kennedy. I just attempted to follow 
on the tradition you have set, and I appreciate it very much, but 
enough said about me and the hearings. 

I would like to say one last thing. This has been a logistically 
complicated undertaking and I think a great deal of credit—it 
sounds like we are congratulating ourselves much too much here, 
but the staff has had a great deal to do in terms of just making 
things flow smoothly, beyond the substantive intellectual input 
they have placed into this. 

And I would like to particularly thank Diana Huffman, who has 
run these hearings from the majority side, and Duke Short and 
others from the minority side. And I am going to put in the record, 
because I don’t want it to sound like a mutual admiration society, 
a list of the key staff persons on all the Senators’ staffs, minority 
and majority, who have worked to make these hearings flow as 
smoothly as they could, and hopefully as fairly as was possible. 

[List follows:] 


STAFF MEMBERS 

Carol Allemeier, John Bentivoglio, Jane Berman, Sharon Blackman, Paul Bland, 
Stef Cassella, Michele de Sando, Laurie Gibson, Mark Gitenstein, Scott Green, 
Diana Huffman, Debra Karp, Kim Lasater, Cindy Lebow, Ron Legrand, Bill Lewis, 
Diane Lowe, Phil Metzger, Steve Metalitz, Tabb Osborne, Debby Pascal, Kathy Pe¬ 
terson, Jeff Peck, Darla Pomeroy, Tracey Quillen, Andy Rainer, Chris Schroeder, 
Phil Shipman, Pete Smith, Andy Tartaglino, Marc Ficco, Nanda Chitre, Jodi Tuer, 
Kevin Wilson, Peter Oxman, John Ungar, Evelyn Ying, Lisa Metz, Duke Short, 
Frank Klonoski, Melissa Nolan, Jack Mitchell, Dennis Shedd, Linda Greene, and 
Bill Rothbard. 



3895 


Lisa Defusco, Carol Hamburger, Jeff Robinson, Michael Russell, Ann Harkins, 
John Podesta, Jody Silverman, Liz Tankersley, Larry Rasky, Leeann Inadomi, Beth 
Donohue, Ana Gregg, Deborah Leavy, Jennifer Nelson, Jack Suber, Kay Morrell, 
Nathalie Blackwell, Bill Myers, Carolyn Osolinik, Annie Rossetti, Melinda Nielsen, 
Mamie Mills, Deborah Walden, Gary Craig, Robert Maagdenberg, Eddie Correia, 
Margaret Morton, Steve Hilton, Neal Manne, Ellen Lovell, Joe Jamele, Theresa Al- 
berghini, Jill Friedman, Marianne Baker, Meg Murphy, Lori Shinseki, Chris Dunn, 
Caryl Lazzaro, Cheryl Matcho, John Trasvina, Abby Kuzma, Jean Leavitt, Randy 
Rader, Dick Day, Jeffrey Blattner, Sandra Walker, Karen Kremer, Monique Aba- 
cherli, George Milner, Jack Foster, and Jerry Ray. 

Peggy Hammrick, Jackie Agnolet, William Duran, Kelly Dermody, Peter Coniglio, 
Matt Johnson, George Smith, Edward Baxter, Matthew McCoy, Cecilia Swensen, 
Mary Hartman, Alice Finn Gartell, Kim Helper, John Somerville, Denise Addison, 
Ann Bishop, Grace McPherson, Jo Meuse, Jennifer Dickson, Elizabeth Gardner, 
Wilham “Bill” Hart, Eloise Morris, Tony Biancuzzo, Jennifer Blackman, Tom 
Young, Mark Kover, Tom Mclsaac, Liz Capdevielle, Sam Gerdano, Dort Bigg, Dar- 
ryll Fountain, Tara McMahon, Lynwood Evans, Elizabeth McFall, John Leader, 
Tracy Essig, George Carenbauer, Mansel Long, Joyce Biancuzzo, Roger Cole, Betty 
Lanier, Judith Lovell, Carlton Betenbaugh, Denise Milford, Mary Lucero, Deabea 
Walker, Wanda Baker, and Tricia Thornton. 

The Chairman. We will have no more public witnesses, and 
unless there are further statements- 

Senator Thurmond. I would just like to thank Duke Short of my 
staff for the great work he has done, and also Frank Klonoski, the 
assistant investigations chief on our staff as well as Melissa Nolan, 
my investigations clerk. And I thank Diana Huffman of your staff 
and others who have cooperated. 

People don’t realize the good work these staff members do and 1 
just want to express my deep appreciation to staff on both sides. 

The Chairman. As my colleagues on my left and right both 
know, when we go home, even though some of the times it was 
8:00, 9:00, 10:00, 11:00 at night, the staff stays here for another 
three or four hours to get things ready for the next day, and we 
appreciate it very much. 

The list I have includes majority and minority staff, and I will 
have more to say about both of them at the executive committee 
meeting. 

These public hearings on the nomination of Robert H. Bork are 
ended. 

[Whereupon, at 5:35 p.m., the hearings were closed.] 


3896 


Post-Hearing Correspondence Between 
Judge Bore and the Committee 

UNITED STATES COURT OF APPEALS 
OlSTftICT OF COLUMBIA CIRCUIT 
WASHINGTON D C 20001 


ROBERT h BOR K 


October 1, 1987 


Honorable Joseph R. Biden, Jr* 
Chairman 

Committee on the Judiciary 
United States Senate 
Washington, D.C. 20510 


Dear Senator Biden: 

I would like to thank you and the other members of the 
Committee for your courteous and insightful questions during my 
appearance before the Committee. They confirmed my belief that 
discussion and debate are essential to growth and change in the 
law. in response to several concerns raised by Senator 
DeConcini, I would also like to take this opportunity to set out 
at somewhat greater length my views on the issues of gender 
discrimination under the Equal Protection Clause and privacy 
rights. 


I. Equal Protection 

On the gender discrimination question, it has been suggested 
that I previously maintained that women and members of other non- 
racial groups were not covered by the Equal Protection Clause, 
but then changed my view in connection with the confirmation 
hearings. This is simply inaccurate and, I suspect, stems in 
large part from confusion about the scope and basis of my 
criticism of modern equal protection analysis. 

There are two basic questions presented when reviewing an 
equal protection challenge to a legislative classification. The 
first question is whether the individual disadvantaged by the 
classification is within the coverage of the Equal Protection 
Clause. The second question is what standard of review is 
employed in assessing the validity of the classification. 

With respect to the first issue, the scope of coverage under 
the Fourteenth Amendment, I have always believed that women are 
subject to the protection of that provision. A judicial 
"interpretivist" or "intentionalist* like myself always looks 
first to the language of the constitutional provision to discern 
its meaning. Any understanding of the Equal Protection Clause as 
being inapplicable to women would seem to be directly contrary to 
the plain language of the Amendment, which prohibits denying " any 
person " equal protection under the law. Indeed, in my 1971 
Indiana Law Review Article, I criticized Supreme Court equal 



3897 


protection cases such as Goesaert v, Cleary , 335 U.S. 464 (1964), 
vhich upheld discrimination against women bartenders, as 
"improper and intellectually empty", Bork, Neutral Principles 
and Some First Amendment Problems , 47 Ind. L. J. 1^ 12 (1971). 

The sole focus of my criticism in this area has been the 
method by which the Supreme Court chooses varying levels of 
judicial review for different groups in our society — the so- 
called "tier" or "group" approach. 

Under this approach, the Court adjusts the level of judicial 
review depending upon the Court's perception of the relative 
political power of the group being disadvantaged. If the Court 
determines that a particular group is a "discrete and insular 
minority" or otherwise unlikely to succeed politically, it 
provides the group with "special protection" under the Equal 
Protection Clause in the form of heightened judicial scrutiny of 
any classification affecting that group. Suspect classifications, 
such as race or ethnicity, are subject to "strict scrutiny" and 
are invariably impermissible as a result. Various other 
"groups" — aliens, illegitimate children, women, and so on —■ 
are subject to different, more lenient standards of review. 

I did not and do not believe that this group-based approach 
is an appropriate or consistent method of analyzing an equal 
protection claim. First, determining vhich groups are entitled 
to special protection is an inherently subjective process vhich 
necessarily involves the judiciary in ad hoc intrusions into the 
democratic process. Judges are forced to pick and choose among 
various elements of society, favoring some and disfavoring 
others, without any guidance from the text of the Constitution or 
any principle that can be neutrally applied in various cases. 

For this reason I have criticized the "protected groups" theory 
as propounded by Professor John Ely because it "channels judicial 
discretion not at all and is subject to abuse by a judge of any 
political persuasion." Catholic University Speech, March 31, 
1982. 


There is an additional difficulty with the group approach. 
Since the Court announced that it was protecting "discrete and 
insular" minorities there was difficulty in explaining why the 
clause applied to women, a group that is actually a slight 
majority of the population, indeed, under the group approach, it 
would be difficult to explain why the clause should apply to more 
than racial minorities since newly freed blacks were the focus of 
concern when the fourteenth amendment was ratified. 

If literally applied, an approach based on special 
solicitude for "discrete and insular" minorities would not only 
preclude scrutiny of gender classifications but would lead to 
other absurd results. For example, convicted murderers would be 
granted "special protection" since they are a discrete and 
insular minority and certainly without political influence. 
Considerations of this sort gave me intellectual difficulty in 


2 - 



seeing hov a group approach could justify extending the clause 
beyond race and, perhaps, ethnicity, although I also thought that 
the gender discrimination involved in Goesaert v. Cleary , should 
have been invalidated rather than upheld. 

I really did not begin to resolve this difficulty until I 
became aware of Justice Stevens 1 suggestion in City of Cleburne 
v. Cleburne Living Center . 473 U.S. 432 <1985), that the group 
approach be dropped and a rational basis test be substituted. As 
he wrote: 

in my own approach to these cases, I have always asked 
myself whether 1 could find a "rational basis" for the 
classification at issue. The term "rational," of 
course, includes a requirement that an impartial 
lawmaker could logically believe that the 
classification would serve a legitimate public purpose 
that transcends the harm to the members of the 
disadvantaged class. Thus, the word "rational" - for 
me at least - includes elements of legitimacy and 
neutrality that must always characterize the 
performance of the sovereign's duty to govern 
impartially. 

The rational-basis test, properly understood, 
adequately explains why a lav that deprives a person of 
the right to vote because his skin has a different 
pigmentation than that of other voters violates the 
Equal Protection Clause. It would be utterly irra¬ 
tional to limit the franchise on the basis of height or 
weight; it is equally invalid to limit it on the basis 
of skin color. None of these attributes has any bear¬ 
ing at all on the citizen's willingness or ability to 
exercise that civil right. We do not need to apply a 
special standard, or to apply "strict scrutiny," or 
even "heightened scrutiny" to decide such cases. 

In every equal protection case, we have to ask 
certain basic questions. What class is harmed by the 
legislation, and has it been subjected to a "tradition 
of disfavor* by our laws? What is the public purpose 
that is being served by the law? What is the 
characteristic of the disadvantaged class that 
justifies the disparate treatment? In most cases the 
answer to these questions will tell us whether the 
statute has a "rational basis.” The answers will 
result in the virtually automatic invalidation of 
racial classifications and in the validation of most 
economic classifications, but they will provide 
differing results in cases involving classifications 
based on alienage, gender, or illegitimacy. But that 
is not because we apply an "intermediate standard of 
review" in these cases; rather it is because the 
characteristics of these groups are sometimes relevant 



3899 


and sometimes irrelevant to a valid public purpose that 

the challenged lavs purportedly intended to serve. 

Id . at 452-4S4 (footnotes omitted). 

This seems to me to provide a much more coherent methodology 
for application of the Equal Protection Clause than does the 
group approach. It applies the clause to all persons as 
individuals . Under my viev, all persons, including vomen, 
illegitimate children, aliens, and others are entitled to 
protection from classifications vhich do not rest upon a 
reasonable basis in fact. 

That is, the Equal Protection Clause prohibits unreasonable 
distinctions among all persons; it does not afford special 
protection to certain groups. In every instance, the question is 
whether the trait being used to distinguish among citizens is in 
fact relevant because it actually tells the legislature something 
about a person's needs, abilities, or merit. If it is not a 
relevant trait to vhich a reasonable legislature would attach 
significance, then it is invidious discrimination and should be 
struck down. 

It seems to me that this method of equal protection analysis 
is both more objective and more faithful to the language and 
intent of the Equal Protection Clause. A judge who claims 
adherence to the framers' intent and to neutral principles must 
search for a single standard vhich can be applied to all lavs 
that distinguish betveen individuals on any basis. The search 
must begin with core concern of those who drafted the Fourteenth 
Amendment vhich is, of course, racial classifications. 

The central tenet of the Fourteenth Amendment is that race 
is an unreasonable basis upon vhich to judge an individual's 
worth or status in the community. As Justice Stevens said, race 
is an attribute over vhich the individual has no control, vhich 
cannot be altered, and vhich tells society nothing about the 
individual's moral worth or ability. It is per se "unreasonable" 
for a legislature to make distinctions betveen individuals based 
on a trait vhich is so utterly irrelevant to any valid 
legislative goal. 

In applying the Equal Protection Clause to gender classifi¬ 
cations, a judge must refer to the framer's concern with race for 
guidance. Gender, like race, is an immutable trait. It is a 
status over vhich the individual exercises no control, and it 
indicates nothing about a person's moral or intellectual stature. 
Since gender is irrelevant to almost all human activities, 
virtually any statute vhich limits the opportunities open to 
vomen because of their sex would not have a reasonable basis in 
fact. 

For example, in the Goesaert case, vhich I referred to 
earlier, the Supreme Court upheld a restriction on the oppor- 


4 




3900 


tunity of women to work in bars. Under my analysis, the law 
would clearly violate the Equal Protection Clause. There is no 
reasonable basis in fact for distinguishing between men and women 
in such a situation. The physical differences between men and 
women have no bearing on their relative abilities in this field. 
The same is true of virtually every employment situation. One’s 
gender is irrelevant to one's ability as a lawyer, doctor or 
accountant, and any restriction on women in any of these fields 
would be as unreasonable as a law which disfavored people with 
blue eyes. 

By focusing on the factual differences between individuals, 
the reasonable basis test distinguishes between lavs which rest 
on genuine distinctions between persons and those based upon mere 
stereotypes. A law which limits the combat duties of women in 
the armed forces may indeed have a reasonable basis. It may be a 
fact that certain battlefront tasks require a physical strength 
or speed which very few women possess. Outside of the narrow 
areas where physical differences between the sexes are relevant, 
the reasonable basis test would operate to strike down all laws 
based upon mere habit or assumption. Distinctions based upon 
outmoded stereotypes can never satisfy a requirement that they 
have "a reasonable basis in fact" because they are in essence 
counterfactual, they ignore the factual similarities between 
persons in favor of unsupported assumptions. 

The results in cases like Reed v. Reed . 404 u.S. 71 (1971), 
and Frontiero v. Richardson . 411 U.S. 677 (1973), would not 
change under my reasonable basis analysis. In Reed , the Court 
struck down a provision of the Idaho Probate Code which 
established an absolute preference for men over women in the 
appointment of administrators of estates. Reed was the first 
victory for women under the Equal Protection Clause, and the test 
applied by a unanimous court was remarkably similar to my own. 

The Court stated: 

A classification "must be reason¬ 
able, not arbitrary, and must rest upon 
some ground of difference having a fair 
and substantial relation to the object 
of the legislation, so that all persons 
similarly circumstanced shall be treated 
alike." 

Reed . 404 U.S. at 76 (citation omitted). The preference for male 
administrators in Reed was not based on any factual difference 
between men and women, rather it was the product of an unthinking 
and unreasonable stereotype. 

In Frontiero, the Supreme Court concluded that an Air Force 
regulation prohibiting women from claiming their spouses as 
dependents on the same basis as men offended the concept of equal 
protection. Four justices would have elevated sex to the 
category of suspect classifications applying "strict scrutiny." 


5 



3901 


Justices Stewart and Powell joined by Chief Justice Burger and 
Justice Blackmun, applied the rational basis test as announced in 
Reed . The result for all eight Justices was the same: the 
preference for men rested on the outmoded stereotype that men are 
"breadwinners" and women are dependent upon them. Under my view, 
the same result would follow. The law had no reasonable basis in 
fact as applied to servicewomen like Sharron Frontiero, whose 
husband was a student dependent on her for a large part of his 
support. 

There was some suggestion at the hearings that my rejection 
of a rigid two- or three-tiered approach was a novel or extreme 
view. Yet both academics and sitting Justices have expressed 
their problems with this approach. Thus, in 1972, Professor 
Gerald Gunther wrote in the Harvard Law Review, "There is 
mounting discontent with the rigid two-tiered formulation of the 
Warren Court’s equal protection doctrine." Gunther, Supreme 
Court Foreword: 1971 Term . 86 Harv. L* Rev. 1, 12 (1972). in 
Chicago Police Dep't v. Mosley . 408 U.S. 92 (1972), Justice 
Marshall criticized "the abstract dichotomy between two different 
approaches to equal protection that have been utilized by [the] 
Court." As noted above Justice Stevens has also made his dis¬ 
content with a group approach crystal clear. See Cleburne , 
supra ? Craig v. Boren . 429 U.S. 190 (1976) (Stevens, J. r con¬ 
curring ). 

It has also been suggested that my reasonable basis approach 
would result in less protection for women, or other nonracial 
groups that have suffered discrimination, than the current 
Supreme Court methodology. However, as the discussion above 
demonstrates, my approach would result in the same or greater 
protection than that currently afforded women: invalidation of 
all gender-based distinctions except that narrow category of 
cases based on genuine biological differences between the sexes. 
While it is true that the Supreme Court in past eras had upheld 
gender based discrimination as rational, the same results simply 
would not obtain today under my analysis. 

Under the "three-tier" approach, the rational basis test is 
the lowest level of scrutiny given to any classification and was 
often used simply to "rubber-stamp" manifestly irrational 
distinctions. As previously noted, I criticized this toothless 
and inconsistent "rational basis" analysis, employed in such 
gender cases as Goesaert . as far back as my 1971 Indiana Law 
Review article. Thus, it is simply inaccurate to compare the 
"rational basis" analysis employed under the three-tier approach 
as a device for upholding classifications to the much more 
searching inquiry I would employ. That is why I prefer to refer 
to the proper approach as a "reasonable basis" test — to avoid 
confusing it with the "rational basis" test which has proved 
wholly unsatisfactory. 

Moreover, this comparison fails to recognize that a basic 
principle of my judicial philosophy is that "it is the task of 


- 6 - 





3902 


the judge in this generation to discern hov the framers values, 
defined in the context of the world they knew, apply to the vorld 
we know." Oilman v. Evans, 750 F.2d at 995-996 (Bork, J. 
concurring). As I have testified, this means that the 
reasonableness of a gender-based classification will change along 
with the role of women in modern society. Even if the framers of 
the Fourteenth Amendment believed that imposing second-class 
citizenship on women was reasonable in the 19th century given 
"the world they knew", it is certainly no longer reasonable in 
light of the economic and independent status of women in the 
"world ve know". Accordingly, the Court's view of reasonableness 
must evolve along with that of society in order to "insure that 
the powers and freedoms the framer's specified are made 
effective in today's circumstances." ibid . 

Finally, I should note that 1 have found that male prisoners 
state a claim of sex discrimination under the Equal Protection 
Clause, Cosgrove v. Smith . 697 F.2d 1125 (D.C. Cir. 19B3), and 
that I argued as Solicitor General that single-sex schools were 
unconstitutional where the all-female school was unequal. 
Vorcheimer v. School District of Philadelphia . 430 U.S. 703 
(1977). Both of these actions involved applying the Equal 
Protection Clause to gender classifications. 

In sum, I think my approach to the Equal Protection Clause 
is fully consistent with the text and history of the Fourteenth 
Amendment. The reasonable basis test will provide at least as 
much protection for women and racial and ethnic minorities as 
present Supreme Court doctrine. In some areas it will provide 
more. Under the present "group approach," if a group fails to 
qualify for "heightened scrutiny" it receives virtually no 
protection from discriminatory laws. Since under my approach all 
individuals are protected by the reasonable basis test, members 
of these groups would be more fully protected from unreasonable 
and arbitrary laws than they are at present. 

11. Right to Privacy 

Another area you asked about is the Constitution's 
protection of individual liberty. As I commented before the 
Committee, the Constitution protects numerous and important 
aspects of liberty. For instance, the first amendment protects 
freedom of speech, press, and religion; the fourth amendment 
protects "Itjhe right of the people to be secure in their 
persons, houses, papers, and effects, against unreasonable 
searches and seizures;" and the sixth and seventh amendments 
protect the right to trial by jury. All of these freedoms and 
more are fundamental. A judge who fails to give these freedoms 
their full and fair effect fails in his judicial duty. But to 
say that a judge must be tireless to protect the liberties 
guaranteed by the Constitution does not mean that one can find a 
right to liberty or personal autonomy more expansive than those 
found in the Constitution. Once a judge moves beyond the 
constitutional text, history, and the structure the Constitution 


7 



3903 


creates, he has only his own sense of what is important or 
fundamental to guide his decisionmaking. 

More fundamentally, where the constitutional materials do 
not specify a value to be protected and has thus left implementa¬ 
tion of that value to the democratic process, an unelected judge 
has no legitimate basis for imposing that value over the contrary 
preferences of elected representatives. When a court does so, it 
lessens the area for democratic choice and works a significant 
shift of power from the legislature to the judiciary. While the 
temptation to do so is strong with respect to a law as "nutty" 
and obnoxious as that at issue in Griswold v. Connecticut , 3B1 
U.S. 479 (1965), the invention of rights to correct such a 
wholly, misguided public policy inevitably involves the judiciary 
in much more difficult policy questions about which reasonable 
people disagree, such as abortion or homosexual rights. (In 
saying this, I do not preclude the possibility that some cases I 
have criticized could be defended on more adequate constitutional 
grounds than the opinions offered. I think I made that clear at 
the hearings.) 

While a legislator obviously can and should make distinc¬ 
tions between such things as the freedom to have an abortion and 
the freedom to use contraceptives, a court cannot engage in such 
ad hoc policy making, A court cannot invent rights that apply 
only in one case and are abandoned tomorrow in a case that cannot 
fairly be distinguished. The process of inventing such rights is 
contrary to the basic premises of self-government and inconsis¬ 
tent application denies litigants the fairness and impartiality 
they are entitled to expect from the judiciary. 

This was the basis of my criticism of Justice Douglas' 
opinion in Griswold , the case invalidating Connecticut's statute 
banning the use of contraceptives. To put the decision in 
perspective, it is important to note that Griswold , even in 1965, 
was for all practical purposes nothing more than a test case. 

The case arose as a prosecution of a doctor who sought to test 
the constitutionality of the statute. There is no recorded case 
in which this 1679 law was used to prosecute the use of contra¬ 
ceptives by a married couple. The only recorded prosecution was 
a test case involving two doctors and a nurse, and in that case 
the state itself moved to dismiss. 

This point was made by Justice Frankfurter four years before 
Griswold in Poe v. Uliman . 367 U.S. 497 (1961), a case rejecting 
an earlier attempt to have the Connecticut law invalidated. In 
addition, Justice Frankfurter's opinion took judicial notice of 
the fact that "contraceptives are commonly and notoriously sold 
in Connecticut drug stores," and concluded that there had been an 
"undeviating policy of nullification by Connecticut of its anti¬ 
contraceptive laws throughout all the long years that they have 
been on the statute books." id. at 502. Thus, it cannot 
realistically be said that failure to invalidate the Connecticut 
law would have had any material effect on the ability of married 
couples to use contraceptives in the privacy of their homes. 


6 





3904 


My principal objection to the majority opinion in Griswold 
was the Court’s construction of a generalized right of privacy 
not tied to any particular provision of the Constitution to 
strike down a concededly silly law which it found offensive. 
Justice Black's dissent, joined by Justice Stewart, made 
precisely the same point: 

While 1 completely subscribe to the [view] 
that our Court has constitutional power to 
strike down statutes, state or federal, that 
violate commands of the Federal Constitution, 

I do not believe that we are granted power by 
the Due Process Clause or any other 
constitutional provision or provisions to 
measure constitutionality by our belief that 
legislation is arbitrary, capricious or 
unreasonable, or accomplishes no justifiable 
purpose, or is offensive to our own notions 
of "civilized standards of conduct." Such an 
appraisal of the wisdom of legislation is an 
attribute of the power to make laws, not of 
the power to interpret them. 

381 U.S. at 513. Of course, had the state actually sought to 
enforce the law against a married couple, questions under the 
fourth amendment as well as under the concept of fair warning 
would certainly have been presented. 

Absent a violation of such a specific, constitutionally 
granted right of privacy, however, it is difficult to discern the 
constitutional impediment to the Connecticut law. In my view. 
Justice Douglas' attempt to do so by creating a free-floating 
"right to privacy" does not state a principle of constitutional 
adjudication that was either neutrally derived or which could be 
neutrally applied in the future. 

As I stated in my Indiana Law Review article (page 7): 

If we take the principle of the decision to 
be a statement that government may not inter¬ 
fere with any acts done in private, we need 
not even ask about the principle's dubious 
origin for we know at once that the Court 
will not apply it neutrally. The Court, we 
may confidently predict, is not going to 
throw constitutional protection around heroin 
use or sexual acts with a consenting minor. 

We can gain the possibility of neutral 
application by reframing the principle as a 
statement that government may not prohibit 
the use of contraceptives by married couples, 
but that is not enough. The question of 
neutral definition arises: Why does the 
principle extend only to married couples? 


- 9 - 



3905 


Why, out of all forms of sexual behavior, 
only to the use of contraceptives? why, out 
of all forms of behavior, only to sex? The 
question of neutral derivation also arises: 

What justifies any limitation upon 
legislatures in this area? What is the 
origin of any principle one may state? 

As I vent on to note in the article, the "zones of privacy" 
discussed by Justice Douglas do not really have anything to do 
with privacy at all. These zones of privacy, I stated, 

protect both private and public behavior and 
so would more properly be labelled "zones of 
freedom". If ve follow Justice Douglas' next 
step, these zones would then add up to an 
independent right of freedom, which is to 
say, a general constitutional right to be 
free of legal coercion, a manifest impos¬ 
sibility in any imaginable society. ... We 
are left with no idea of the sweep of the 
right of privacy and hence no notion of the 
cases to which it may or may not be applied 
in the future. 

Indiana Lav Review Article at 9. 

With all modesty, my suggestions that the right of privacy 
was not really about "privacy" as such, that this right would not 
be applied consistently, and that it would lead the Court into 
much more difficult moral and social issues, have all proved 
prophetic. 

For example, the "privacy" right recognized in Roe v. Wade, 
410 U.S. 113 (1973) — a right to terminate a pregnancy — is not 
really about privacy, but is more accurately described as a 
right to personal autonomy or liberty. Privacy refers to an 
interest in anonymity or confidentiality whereas liberty 
describes freedom to engage in a certain activity. The question 
in Roe , therefore, is whether any provision of the Constitution 
recognizes an individual right to terminate pregnancy against 
state intrusion. The Court’s opinion in Roe made no attempt to 
ground such a right in the Constitution except to say that it was 
"founded in the 14th Amendment's concept of personal liberty and 
restrictions upon state action." Id. at 153. 

This is my difficulty with the opinion. As Justice White's 
dissent, joined by Justice Rehnquist, stated, there is "nothing 
in the language or history of the Constitution to support the 
Court's judgment," which the dissent termed "an exercise of raw 
judicial power." The due process clause of the fourteenth 
amendment provides that "No State shall . . . deprive any person 
of life, liberty, or property, without due process of law." If 
the clause is read as written, then it guarantees that life. 


- 10 




3906 


liberty, and property will not be taken without the safeguard of 
fair and adequate legal procedures to challenge the legality of 
the deprivation. Once such procedures have been given, and the 
legality of the deprivation established, the due process clause 
does not establish an independent barrier to the deprivation. 

If, on the other hand, the clause is read to protect liberty 
against deprivation regardless of procedures, then the judge must 
have a theory for deciding which liberties are protected and 
which are not since no one would suggest that all liberty is 
immune from state regulation. 

So far as I can tell, no one has ever been able to explain 
why some liberties not specified in the Constitution should be 
protected and others should not. As far as the Constitution is 
concerned, when it does not speak to the contrary the state is 
free to regulate. A judge who uses the due process clause to 
give substantive protection to some liberties but not others has 
no basis for decision other than his own subjective view of what 
is good public policy. 

Attempts to read substantive protections of liberty into the 
due process clause have failed in the past precisely because the 
clause gives no indication of which liberties are to be preferred 
to others. In the early part of this century, for example, the 
Supreme Court read the due process clause of the fifth and 
fourteenth amendments to protect a generalized liberty of 
contract, and routinely struck down laws that interfered with 
that liberty. Thus, in Lochner v. New York . 198 U.S. 45 (1905), 
the Supreme Court invalidated a New York labor law limiting the 
hours of bakery employees to 60 hours a week. Similarly, in 
Adair v. United States . 208 U.S. 161 (1908), the Court struck 
down a federal law prohibiting interstate railroads from 
requiring as a condition of employment that its workers agree not 
to join labor unions. And in Adkins v. Children's Hospital . 261 
U.S. 525 (1923), the Court held the District of Columbia's 
minimum wage law unconstitutional. 

As I have said elsewhere, the Supreme Court's modern 
attempts to use the due process clause as a substantive protec¬ 
tion of liberty have also been unconvincing. Although the Court 
has held in Roe that a woman has a constitutional right to 
receive an abortion, it has more recently held that consenting 
adults do not have a constitutional right to engage in homosexual 
sodomy. See Bowers v. Hardwick . 106 S. Ct. 2841 (1986). Justice 
White's opinion for the Court in Bowers reasoned as follows: 

It is obvious to us that neither ["the 
concept of ordered liberty" nor the liberties 
"deeply rooted in this Nation's history and 
tradition" formulation] would extend a 
fundamental right to homosexuals to engage in 
acts of consensual sodomy. Proscriptions 
against that conduct have ancient roots. 


11 



3907 


Id. at 2814. 

The difference between these two decisions illustrates my 
point that it is difficult, if not impossible, to apply the 
undefined right of privacy in a principled or consistent manner. 

It is difficult to understand why abortion is a constitutionally 
protected liberty and homosexual sodomy is not. Neither activity 
is mentioned in the Constitution, both involve activity between 
consenting adults, and "[proscriptions against [both activities] 
have ancient roots." 

Some have said that the principle may be that individuals 
have a constitutional right to use their bodies as they wish. 

Not only is this principle to be found nowhere in the 
Constitution, but also its application would invalidate lavs 
against prostitution, consensual incest among adults, bestiality, 
drug use, and suicide, not to mention draft lavs and countless 
safety measures such as laws requiring the use of seat belts and 
motorcycle helmets. This principle is thus far too general to 
support a particular decision without sweeping in these other 
cases. 

As I stated before the Ccmunittee, it would be inappropriate 
for me to give any indication of how I would vote as a member of 
the Supreme Court should the issue arise again. But suffice it 
to say that the question would be one of searching for an 
appropriate constitutional basis and precedent. As I have 
emphasized not every incorrectly decided constitutional decision 
should be open to reconsideration. 

Although I cannot claim to have exhaustively researched the 
question, I do not think that the ninth amendment provides any 
basis for a contrary conclusion. The ninth amendment provides: 
"The enumeration in the Constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the 
people." The historical meaning of this amendment is revealed by 
the circumstances of its adoption. As you are certainly aware, 
the original Constitution did not contain a Bill of Rights. 
Rather, it established a national government of enumerated 
powers. But during the ratification debates, calls were made 
with increasing frequency by the so-called Anti-Federalists for 
adoption of a Bill of Rights. The Federalists raised two 
objections to inclusion of a Bill of Rights. First, it was said 
to be unnecessary because Congress would have no power to abridge 
fundamental rights of the people as the general government was 
one of enumerated, and therefore limited, powers. Second, the 
Bill of Rights was said to be dangerous because the reservation 
of certain rights might be read to imply that power was given to 
the federal government to regulate all others. 

Once James Madison became convinced of the need for a Bill 
of Rights, Madison defended his proposal as follows: 


12 - 




3908 


It has been objected also against the bill of 
rights, that, by enumerating particular 
exceptions to the grant of power, it would 
disparage those rights which were not placed 
in that enumeration; and it might follow, by 
implication, that those rights which were not 
singled out, were intended to be assigned 
into the hands of the General Government, and 
were consequently insecure. This is one of 
the most plausible arguments I ever heard 
urged against the admission of rights into 
this system; but, I conceive, that it may be 
guarded against. I have attempted it, as 
gentlemen may see by turning to the last 
clause of the fourth resolution. (1 Annals 
of Congress 456 (J. Gales 6 W. Seaton ed. 

1834)). 

The clause to which Madison referred was the provision that would 
later be adopted in somewhat shorter form as the ninth amendment. 
Thus, it appears that the amendment's instruction that the 
enumeration "of certain rights, shall not be construed to deny or 
disparage others retained by the people" was meant to prevent any 
implication, as Madison put it, "that those rights which were not 
singled out, were intended to be assigned into the hands of the 
General Government." 

This means that whenever the Constitution does not grant the 
power to regulate conduct to the federal government, the people 
have a right to engage in that conduct free from federal 
interference even though the conduct is not specified in the Bill 
of Rights. It must be emphasized that the "right" protected by 
the ninth amendment runs against the federal government when it 
undertakes to regulate individuals through an unwarranted expan¬ 
sion of its powers. For this reason, it makes little sense 
either textually or historically to speak of ninth amendment 
rights enforceable against the states . As I have said elsewhere, 
if that were the meaning of the ninth amendment, then surely 
there would have been heated debate in the state ratifying 
conventions, and litigants and courts would have invoked the 
amendment in that capacity. That neither occurred, I think, is 
strong evidence that the amendment was not intended to create 
federally enforceable rights against the states. 

Moreover, even if one agrees with the recent suggestion that 
the ninth amendment protects natural rights against state and 
federal intrusion, the nature and scope of those rights is 
undefined and virtually limitless. For example, John Locke, a 
thinker whose writings profoundly influenced the framers' view of 
"natural rights," regarded property and contract rights as among 
the most important natural rights of men. Accordingly, if the 
ninth amendment were to be interpreted as a grant of liberty 
against government intrusion, it would necessarily include the 
freedom of contract. Of course, this would lead to invalidation 


13 



3909 


of the worker protection legislation struck down by Lochner and 
its progeny, or any other form of economic regulation that 
hampers the "right" to contract. 

Alternatively, members of the Supreme Court have invoked 
their own notions of natural law in the past. For example. 
Justice Bradley's concurrence in Bradwell v. State , 83 U.S. 130 
(1973), upholding a law forbidding women from practicing law, 
states: "The natural and proper timidity and delicacy which 

belongs to the female sex evidently unfits it for many of the 
occupations of civil life. . . , LThe] paramount destiny and 
mission of woman are to fulfil the noble and benign offices of 
wife and mother. This is the law of the Creator." 

But those who now urge reliance on the ninth amendment see a 
different set of natural rights emanating from the ninth amend¬ 
ment. For example, Professor Tribe filed a brief with the 
Supreme Court in Bowers v. Hardwick suggesting that one of the 
rights "retained by the people" under the ninth amendment is the 
right to engage in homosexual sodomy. Equally plausible are 
claims that the ninth amendment protects drug use, mountain 
climbing, and consensual incest among adults. Certainly the text 
of the amendment makes no distinction among any of these 
"rights." Therefore, unless the ninth amendment is to be read to 
invalidate all lavs that limit individual freedoms, judges who 
invoke the clause selectively will be doing nothing more than 
imposing their subjective morality on society. 

Although Justice Goldberg's concurrence in Griswold invoked 
the ninth amendment, the problems just discussed are, I think, 
the reason why the Supreme Court has never rested a decision on 
the ninth amendment. For instance, even Justice Douglas, the 
author of the majority opinion in Griswold , stated in a 
concurring opinion in the companion case to Roe v. Wade , that 
"The Minth Amendment obviously does not create federally 
enforceable rights." Doe v. Bolton , 410 U.S. 179, 210 11973) 
(Douglas, J., concurring!. Unless someone can find a way both to 
read the ninth amendment to apply against the states and to 
discover which additional rights are retained by the people, I do 
not see any principled way for a judge to rely on the clause to 
invalidate state lavs. 

There is one final matter I wish to mention. There appears 
to be some confusion concerning my view of, and the Court’s 
decision in, Skinner v. Oklahoma . 316 U.S. 535 (1942). Skinner 
held that a state statute requiring sterilization of recidivist 
robbers but not embezzlers worked "a clear, pointed, unmistakable 
discrimination," id. at 541, and therefore violated the equal 
protection clause of the fourteenth amendment. It is important 
to understand the rationale given by the Court for its decision. 
The Court did not rely on a substantive due process right to 
privacy, in fact, the Court declined Chief Justice Stone's 
invitation in a separate concurrence to decide the case under the 
due process clause. Instead, the Court rested its decision 


14 




3910 


squarely on the equal protection clause: "The equal protection 
clause would indeed be a formula of empty words if such 
conspicuously artificial lines could be drawn," Id . 

In my 1971 article, I was critical of what I believed to be 
the Supreme Court’s inconsistent application of the equal 
protection clause, I cited six cases as examples in which the 
Court both upheld and invalidated challenged classifications. 

One of the cases I cited was Skinner v. Oklahoma . I did not cite 
Skinner . or any other case I listed, for the correctness or 
incorrectness of its holding. Rather, my point was merely that 
it appeared that "the differing results cannot be explained on 
any ground other than the Court's preferences for particular 
values." Indiana Law Review at 12. This was the sum total of my 
"criticism" of Skinner , and I think it is at best inaccurate to 
suggest, as some have, that my inclusion of Skinner in a string 
cite means that I disagree with the decision in the case. 

As I stated in my testimony before the Committee, the 
state's decision to sterilize robbers but not embezzlers may have 
been indicative of racial bias because the statute operated 
disproportionately against racial minorities and the poor. If 
that is true, and if robbery and embezzlement are, as the Court 
said, "intrinsically the same quality of offense," 316 U.S. at 
541, then I think it may be fair to say the state engaged in 
impermissible discrimination. In addition, I note that 
sterilization of criminals raises serious and independent 
questions under the eighth amendment's prohibition on cruel and 
unusual punishment, questions neither I nor the Court addressed. 

I hope that these additional comments prove to be of 
assistance to you. 


Sincerely, 

Robert H. Bork 


cc: Honorable Dennis DeConcini 

Honorable Strom Thurmond 


15 



3911 


UNITED STATES COURT OF APPEALS 
DISTRICT OF COLUMBIA CIRCUIT 
WASHINGTON D C 20001 


ROBERT H BOR K 

OCT I 1987 


Honorable Joseph R. Biden, Jr. 

Chairman 

Committee on the Judiciary 
United States Senate 
Washington, D.C. 20510 

Dear Mr. Chairman: 

I submit this letter in order to supplement my testimony 
before the Committee concerning my participation in Vander Jagt 
v. O 1 Weill . 699 F.2d 1166 (D.C. Cir. 1983). 1 understand that 

the questions raised by the Committee concerning Vander Jagt 
arose from an August 24, 1987 letter to the Committee written by 
Senior District Judge James F. Gordon, a copy of which was 
provided me last week upon request. 

I think the recollections of other persons involved, the 
contemporary documentation, and the practicalities of the 
situation all demonstrate that Judge Gordon's present 
recollection is incorrect. Moreover, I and other judges often 
discover in the course of preparing an opinion that "it will not 
write” and change the rationale or even the result. That is 
precisely what happened in Vander Jagt . 

It may help to recount the events in Vander Jagt . as I and 
others remember them, because our recollection of these events 
differs significantly from Judge Gordon's. 1 have attached to 
this letter all the documents I have located in my files that 
concern the panel’s deliberations in this case, and to which I 
will refer. As you can see from a review of these documents, I 
do not believe there is any basis for calling into question my 
actions in the vander Jagt case. In addition, my recollection of 
these events is corroborated by my two law clerks who handled the 
case from beginning to end, Paul Larkin and John Harrison, and by 
Judge Robb's personal secretary, Ruth Luff. Ms. Luff’s recall of 
these events was brought to my attention by Senior Judge 
MacKinnon, who called me after Judge Gordon's letter had been 
noted in the Washington Post . I have attached to this letter the 
declarations of Paul Larkin and John Harrison and the affidavit 
of Ruth Luff. 

In Vander Jagt . several Republican Members of the House of 
Representatives filed suit alleging that House committee 
assignments by the Democratic majority impermissibly diluted the 
political influence of the Members and their constituents by 
assigning fewer seats on committees than their numbers would 
entitle them to proportionately. The district court dismissed 




3912 


- 2 - 

the suit on the grounds that the challenge was precluded by the 
Speech or Debate Clause and the political question doctrine. 

On March 19, 19B2, I sat on a panel with Circuit Judge Robb 
and District Judge Gordon, of the Western District of Kentucky, 
sitting by designation, and heard oral argument on the appeal. 

At conference following the argument, the panel agreed to affirm 
the district court, and Judge Robb, who was senior judge on the 
panel, assigned the writing of the opinion to me. Judge Robb's 
March 19 memo stated "[t]he opinion will assume that the 
plaintiffs have standing, but will conclude that they are out of 
court for numerous other reasons.” 

In the course of preparing the opinion, I came to the 
conclusion that the appeal should be decided instead on the 
ground that the plaintiffs lack standing to sue. I reached this 
view after a review of the Supreme Court's decision in the Valley 
Forae case, handed down just months before. Soon thereafter I 
visited Judge Robb in his chambers and discussed with him my view 
that the rationale for our decision to affirm the district court 
should change. Judge Robb agreed with this proposed change, and 
I returned to my chambers and informed my law clerk assigned to 
the case, Paul Larkin, of the substance of my discussion with 
Judge Robb. Both Paul Larkin and Judge Robb's secretary, Ruth 
Luff, remember this meeting. 

On September 17, I 6ent to Judge Robb and Judge Gordon a 
draft opinion in the Vander Jaqt case; my cover memorandum 
routinely indicated that I was disseminating the draft "for your 
review and comment." 

(Judge Gordon incorrectly remembers that my draft was not 
sent to him until "the first part of November," and incorrectly 
adds that it came without a cover note. This is important, 
because Judge Robb was hospitalized in November, as Judge 
Gordon's letter indicates, but he was not hospitalized before 
then, when these events took place, at the time when Judge Gordon 
would have had reason to call Judge Robb. As the declaration of 
John Harrison suggests, what Judge Gordon now remembers as a 
conversation with another judge concerning this incident may well 
have concerned other aspects of the case, including perhaps 
whether Judge Robb would write a separate opinion or join in 
Judge Gordon's opinion.) 

My draft opinion proposed to affirm the district court's 
dismissal for lack of standing, consistent with my discussion 
with Judge Robb. One week later I wrote Judge Gordon, apologized 
for failing expressly to notify him in advance of the change in 
rationale, and explained my standing rationale; I sent a copy of 
this letter to Judge Robb on October 1, who may not have received 
it immediately because he was on vacation in Massachusetts at the 



3913 


- 3 - 

time. I do not recall who or what prompted the September 24 
letter to Judge Gordon. 

To my great surprise, I receivec from Judge Robb in 
Falmouth, Massachusetts a memorandum to Judge Gordon and me dated 
October 5, in which Judge Robb expressed surprise at my draft 
opinion and disagreed with its rationale. Judge Robb wrote that 
he would apply the holding in the Rieqle case, where the court 
determined a matter of its "equitable discretion" not to disturb 
the legislative decision. Judge Robb wrote "If Judge Gordon 
adheres to our reasoning and decision at conference, I suggest 
that he prepare an opinion along those lines. Judge Bork may of 
course write separately." 

Although in his letter Judge Gordon states that at 
conference, the Rieqle case and the equitable discretion doctrine 
were discussed. Judge Robb's memorandum the same day of argument 
does not mention that rationale as a basis for our decision. 
Moreover, I do not recall any mention of the Rieqle rationale by 
Judge Robb or Judge Gordon at conference or at any time before 
Judge Robb’s October 5 memorandum. Fy recollection that the 
Rieqle rationale was not considered until Judge Robb's October 5 
memorandum is supported by the two memoranda of Judge Robb in my 
files and my October 8 memorandum, discussed below, to which 
neither Judge Robb nor Judge Gordon objected. That memorandum 
shows that at our conference after the argument we agreed to put 
the case on either the Speech or Debate Clause or the political 
question doctrine. 

I immediately wrote Judge Robb and Judge Gordon on October 
8. I explained in full my standing rationale and recounted my 
earlier visit to Judge Robb's chambers, our discussion of the 
standing rationale, and Judge Robb's agreement with my proposed 
change in rationale. I readily acknowledged that "the confusion 
into which this case has been plunged" was the result of my 
failure immediately to apprise Judge Gordon of my discussion with 
judge Robb when I disseminated my initial draft opinion September 
17. 1 made no excuses; in fact the memorandum contains four 

separate apologies for this one oversight. I wrote, 

"Inexcusably, I neglected to write to Judge Gordon about my 
changed thinking. Judge Robb does not remember my conversation 
with him, does not doubt it took place, but is sure he mu6t have 
misunderstood what I proposed." I informed the panel members 
that I would write a lengthier concurrence, one which would allow 
me fully to elaborate my thinking on the standing doctrine. 

Thereafter, draft opinions by Judge Gordon and me were 
freely exchanged and comments were made on each other's drafts. 

I do not recall receiving any criticism from either Judge Robb or 
Judge Gordon at the time for changing my view of the case or even 
for failing to inform Judge Gordon right away of this change. 
Indeed, neither I nor my law clerk at the time, John Harrison, 




3914 


- 4 - 

recalls that the matter was ever brought up after my October 8 
memorandum. 

In my view, whatever misunderstanding there had been in the 
early fall of 1982 as a result of my failure to inform Judge 
Gordon of my change in rationale when I sent him my proposed 
draft was long ago cleared up to everyone's satisfaction. Upon 
reading the affidavit of Judge Robb's secretary, I now understand 
why Judge Gordon could have been upset at the time, because Judge 
Robb, forgetting our visit, may have told Judge Gordon that he 
could not have agreed to a change in rationale because I never 
discussed the matter with him. But I do believe that my 
memoranda of September 24 and October 8, coming just days after I 
sent out my draft opinion, fully explained the circumstances to 
Judge Gordon, and I had no reason to doubt— in fact, I gave the 
matter no thought— that he was satisfied by my explanation until 
his letter to the Committee nearly five years later. 

Judge Gordon's present day recollection of the events in 
1982 is all the more surprising after his final letter to me is 
considered. On December 17, 1982, Judge Gordon sent me his 
"final draft," and asked that I see to it that his opinion would 
be processed for publication. Judge Gordon concluded his letter 
to me with the following: "Hay I take this opportunity of 
expressing to you my pleasure in sitting with you last March and 
the making of your acquaintance, and I wish for you and yours a 
happy and joyous Yuletide season." This is hardly the sentiment 
of one who thinks an attempt to dupe him has just been made. 

The appeal was decided eventually on February 4, 1983. 

Judge Robb joined in Judge Gordon's opinion, which affirmed the 
district court's dismissal on the "equitable discretion" 
rationale announced in the Rieole case. I wrote a concurring 
opinion concluding that the plaintiffs lacked standing to sue. 

In his letter to the Committee, Judge Gordon states that he 
was "shocked" to receive my draft opinion. Yet I do not recall 
that Judge Gordon expressed to me, either at the time, 1982-1983, 
or at any time since, any displeasure with the panel's 
deliberative process, or specifically, my involvement in the 
case. And Judge Gordon does not indicate in his letter that he 
ever raised this matter with me directly, at the time or at any 
time since. Indeed, the tone of hie December 17, 1982 letter to 
me is utterly at odds with Judge Gordon's August 24, 1987 letter 
to the Committee. 

After reading for the first time Judge Gordon's letter to 
the Committee, I can understand why some members of the Committe 
raised questions. But I cannot help but conclude that, had Judge 
Gordon consulted the several documents that were sent to him by 
me and Judge Robb at the time, which I have attached to this 



3915 


- 5 - 

letter, he would not have written the August 24 letter to the 
Committee. 

Apart from this detailed account of my recollection of the 
panel's deliberations in Vander Jaqt , I am compelled to respond 
to Judge Gordon's accusation that I somehow intended to have my 
view on standing serve as the holding of the case and become the 
law of the circuit, without obtaining knowing concurrence of at 
Least one other judge. As I indicated during my testimony, it is 
simply preposterous to suggest that I could or would have 
attempted any such thing. The record that is at my disposal, and 
which I submit to the Committee, in my view refutes any such 
idea. In particular, the discussion X had with Judge Robb, and 
the explanatory memoranda I wrote to Judge Robb and Judge Gordon 
belie this notion. 

of course, the very fact of sending a draft opinion to the 
other members of the panel, "for their review and comment," as I 
did in this case, is all that is often done on my court, and 
frankly, it is all that is or should be necessary. Not 
infrequently, I have received from other judges on my court draft 
opinions incorporating changes in rationale from that to which 
the panel had agreed at conference, and sometimes even a change 
in the result, without any separate explanation. And every 
opinion of the D.C. Circuit must circulate among all members of 
the court for a period of time before it may be issued. There is 
simply no possibility that any judge could change the law of the 
circuit surreptitiously. Even if that were possible, as it is 
not, the full court would simply grant the inevitable petition 
for rehearing en banc and put the law back in its prior position. 
Any judge who tried such a maneuver would certainly fail and 
would, moreover, forfeit forever the respect of his or her 
colleagues. The facts show that I attempted no such thing. 

I hope this letter responds to any questions the Committee 
has concerning Judge Gordon's letter about the Vander Jaat case. 


Sincerely, 

Robert H. Bork 


Attachments 

cc: Honorable Strom Thurmond 


88-374 0-89-30 




3916 


March 19/ 1982 


MEMORANDUM to ^fadg* BorkT^ > 

Juage doraon 

RE; Vander Jagt v. O'Neill 

No. 81-2150 

FROM: Judge Robb 


At conference we agreed to affirn the District 
Court. Judge Bork offered to prepare the opinion. The opin¬ 
ion will assure that the plaintiffs have standing but will 
conclude that they are out of court for numerous other 
reasons. 



3917 


UNITED STATES COURT OF APPEALS 
DISTRICT O* COLUMBIA CIRCUIT 
WASHINGTON O C 20001 

ROBERT H BORK 

uwit«o cmguiT supoi 


MEMORANDUM 

TO: 

FROM 
RE: 

DATE 

Attached is my proposed opinion in the above- 


Judge Robb 
Judge Gordon 

Judge Bork 

No. 81-2150 -- Guy Vander Jagt, et al■ v. 
Thomas O'Neill. Jr, 

September 17, 1982 


mentioned case for your review and comment. 




3918 


UNITED STATES COURT OF APPEALS 
DISTRICT OF COMJM0IA CIRCUIT 
WASHINGTON 0 C 20001 


ROBERT H BORK 

u***r«E •'*'*» C'NCWIT ju««« 


September 24, 1982 


The Honorable James F. Gordon 
United States District Court 
Western District of Kentucky 
P.O. Box 435 
Federal Building 
Owensboro, Kentucky 42301 

Re: No. 81-2150 -- Guy Vander Jagt, et al, v. 

T homas O’Neill. Jr. 

Dear Judge Gordon: 

It occurs to me too late that I should have notified 
you in advance that I had changed the rationale in the 
Vander Jagt case to one of lack of standing. 

After I got started on Che opinion, it became apparent 
that it was harder to dispose of the case under either the 
political question doctrine or the Speech or Debate Clause. 
The Supreme Court's opinion in Valley Fo rge , on Che other 
hand, made it relatively easy to dispose of the case on the 
standing ground. This tack was also indicated because there 
are some en banc rehearings coming up in this circuit 
for which the other two grounds might have implications. 

That would have complicated the writing of the opinion 
based upon political quescion or Speech or Debate. 

In any event, I regret not having apprised you of 
my thinking earlier in the process of writing. 

Best wishes. 


Sincerely, 



Robert H. Bork 


RHB/hh 



3919 


UNITED STATES COURT OF APPEALS 
DISTRICT OF COLUMBIA CIRCUIT 
WASHINGTON D C 20001 


ROBERT H 80RK 

UNtTCO |T«ni Ci*CU'T JVStl 


MEMORANDUM 


TO: Judge Robb 

FROM: Judge Bork ‘/Ir* 

RE: No. 81-2150 -- Guy Vander Jagt, et al. v. 

Thomas O'Neill, Jr. 

DATE: October 1, 1982 


Attached is the letter I sent to Judge Gordon. 




3920 


Falmouth, Mass. 
October 5, 1982 


MEMORANDUM to Judge Bork 

Judge Gordon 

RE: Vander Jagt v. O'Neill 

No. 81-2150 

FROM: Judge Robb 


My post-conference memorandum in this case said: 

At conference we agreed to affirm the District 
Court. Judge Bork offered to prepare the opinion. 

The opinion will assume that the plaintiffs have 
standing but will conclude that they are out of court 
for numerous other reasons. 

Now I am surprised to have Judge Bork's proposed opinion, 
holding that the plaintiffs are out of court because they have 
no standing to sue. Although I agree with the result I regret 
that I cannot concur in the opinion. I would apply the Riegle 
theory to this case. The Valley Forge case, relied on in the 
proposed opinion, was not a case of a congressional plaintiff, 
and I see nothing in it that suggests that the Court would not 
have approved the application of the Riegle theory in a 
congressional plaintiff context. 

I think it can be argued here that in many ways plaintiffs 
have suffered injury. Although the proposed opinion says their 
votes have not been nullified, it is certainly true that the power 
or weight of their votes has been substantially diminished. I 
am not prepared to say that a plaintiff has standing to sue 
if his injury requires major surgery, but he will not be heard 
if he has suffered only bruises and contusions. 

If Judge Gordon adheres to our reasoning and decision at 
conference, I suggest that he prepare an opinion along those 
lines. Judge Bork may of course write separately. 


R. R. 



3921 


UNITED STATES COURT OF APPEALS 
DISTRICT OF COLUMBIA CIRCUIT 
WASHINGTON O C 20001 


ROBERT H BORK 

HT« «TAT(| CIRCUIT JUO«* 


MEMORANDUM 


TO: 

Judge Robb 


Judge Gordon 

FROM: 

Judge Bork 

RE: 

No. 81-2150 -- Guy Vander Jagt, et al. v. Thomas 


O' Neill, Jr. 

DATE: 

October 8, 1982 


Since my earlier failure to communicate is largely 
responsible for the confusion into which this case has been 
plunged, I think it advisable to set out my current thoughts 
about the case. 

1. As explained in my prior memorandum, I think it easier 
to deal with this case on the standing doctrine than on the 
political question doctrine or the Speech or Debate Clause. 

That is true both for doctrinal reasons and because the latter 
two questions are much involved in a case we are to hear en 
banc later this month. 

2. Having reached this conclusion in the course of 
preparing the opinion, I visited Judge Robb in his chambers and 
explained that I preferred to dispose of the case on standing 
grounds by returning .to the complete-nullificatlon-of-a-vote 
test adopted by the per curiam opinion m Goldwater v. Carter . 

I understood Judge Robb to agree to this strategy. 

Inexcusably/ I neglected to write to Judge Gordon about my 
changed thinking. Judge Robb does not remember my conversation 
with him, does not doubt it took place, but is sure he must 
have misunderstood what I proposed. 

3. Judge Robb suggests that Judge Gordon prepare an 
opinion affirming the district court on the basis of the 
circumscribed equitable discretion doctrine elaborated in 
Riegle . This is yet a fourth ground for affirmance and one not 
discussed at our conference. I do not object to it for that 
reason, however. Nor do I have any problem with the idea of 
turning my opinion into a concurrence. 




3922 


Page Two 


4. I do not agree that the premise of Riegle can any 
longer be considered intact. The Supreme Court's V alley Forge 
decision unmistakably demonstrates that separation-of-powers 
concerns are to be implemented through the concept of 
standing. Valley Forge , which came after Riegle , is merely the 
latest in a long line of Supreme Court decisions which make 
that clear. I do not believe there is any significance in the 
fact that Valley Forge did not involve a congressional 
plaintiff. Indeed, separation-of-powers concerns are even 
stronger when the plaintiff is a congressman. 

5. Assuming that Judge Gordon does prepare a majority 
opinion resting on the doctrine of circumscribed equitable 
discretion, I will feel free, as I did not when writing for the 
court, to express my views more fully. I think I should 
indicate now what those views are and how my concurring opinion 
is likely to differ from the present draft. I would, as 
mentioned above, point out that the decision in Valley Forge 
removes the foundation upon which Riegle rests. I would 
explain my reasons for thinking that the doctrine of 
circumscribed equitable discretion incorporates erroneous 
criteria and permits too many suits by legislators. I would, 
at a minimum, urge a return to the test of Goldwater v. Carter 
and would, probably, go on to suggest that Kennedy v. Sampson 
was wrongly decided and that there should be no such doctrine 
as legislator standing. 

I mention these things now out of what may be an excess of 
caution bred of my failure to communicate fully earlier in the 
preparation of my opinion. In no sense do I wish to be 
understood as in any way displeased that one or both of you 
cannot agree with what I have written. I welcome the idea of 
writing a concurrence precisely because I will be able more 
freely to express what I think about this area of the law. 

6. If there is any danger of mootness in this case, I do 
not think it could arise until January 3, 1983, when a new 
House of Representatives will come into existence. However, I 
do not think the case will become moot even then. 

7. Despite my own failure in the past, I would appreciate 
learning as soon as Judge Gordon has decided whether the 
majority opinion is to rest on Riegle so that I can be ready 
with my concurrence and not delay the issuance of our decision. 

I apologize to both of you for not making matters clearer 
as 1 went along. 



3923 


|ibm Jf. 9orbn 


Jlmiiii jStat** Jistrirt Court 

POM TH( 

Bnlm Birtrirt of Kentucky 

Owensboro, Kentucky 42302 
December 17, 1982 


The Honorable Robert H. Bork 
Judge, U. S. Court of Appeals 
District of Columbia Circuit 
3rd and Constitution Avenue, N.W. 

Washington, D, C. 23001 

RE: Vander Jagt v. Speaker O'Neill . No. 31-2150 

Dear Judge Bork: 

I have not as yet received your most recent re¬ 
write in the above-styled matter; however, in the interest 
of time, I enclose herewith two copies of the final draft 
of my opinion. 

The final draft attached hereto contains some changes 
on pages 3 and 8 of the opinion and on Footnote pages 9, 10 
and 11, plus the further fact I have rewritten the same so 
that it becomes now only my opinion as opposed to mine and 
Judge Robb's opinion. 

Inasmuch as you are now, in Judge Robb's absence, the 
presiding Judge, 1 assume that you will see to the proper 
processing of my opinion through the Clerk’s office there, 
and that there is nothing further for me to do. I would 
however appreciate it if you would have your law clerk give 
us a ring here when you have received this. 

May 1 take this opportunity of expressing to you my 
pleasure in sitting with you lasc March and the making of 
your acquaintance, and I wish for you and yours a happy and 
joyous Yuletide Season. 


JFG/ddt 


Sincerely, 





JAMES F. GORDON 

/ 

I 


Attachment 



3924 


DECLARATION OF 
PAUL J. LARKIN, JR. 

I, Paul J. Larkin, Jr., being duly sworn, state: 

1. I served as a law clerk to the Honorable Robert H. Bork, 
Circuit Judge for the United States Court of Appeals for the 
District of Columbia, from February 12, 1987, through August 13, 
1982 . 

2. The following account is my current recollection of the 
events concerning the Judge's participation in the Vander Jagt v, 
O'Neill case, which was heard by Judge Robb, Judge Bork, and 
Judge Gordon. 

3. At the conference following the oral argument in the 
case. Judge Bork was given the assignment of drafting the opinion 
for the panel. Judgment was to be entered in favor of the 
defendants, O’Neill ej: al^. I believe that the panel's tentative 
rationale was to be that the plaintiff's claim presented a 

non justiciable political question. I remember that the rationale 
was not to be that the plaintiffs lacked standing. 

4. Judge Bork decided to draft the opinion himself, rather 
than ask me to prepare a draft. After working on the opinion. 
Judge Bork concluded that the panel should rule instead that the 
plaintiffs lacked standing to sue. I believe that Judge Bork 



3925 


- 2 - 


concluded after readi 
in the Valley F orge c 
for disposing of the 
he would speak with J 


5. Judge Bork s 
chambers about the st 
after he returned to 
Robb had agreed to di 
rather than on the ra 
agreed. 


na tne Supreme Court's January 198 
ase that standing was the appropri 
Vander Jagt case. Judge Bork told 
udge Robb about his new proposed r 

poke with Judge Robb m Judge Robb 
anding rationale. Judge Bork spok 
chambers. Judge Bork told me that 
spose of the case on a standing ba 
tionale to which the panel had on 


2 decision 
ate basis 
me that 
ationale, 

' s 

e with me 
Judge 
sis , 
gmal ly 


6. I finished my clerkship in late summer. I was surprised 
when I received a copy of the opinion in the case, because Judge 
Bork's proposed opinion had become a separate concurrence, rather 
than the opinion for the court. 

7. In my view, there is no foundation to the accusation 
that Judge Bork's conduct in this case was improper. I find it 
impossible to believe, and know of no evidence to support the 
claim, that he sought to take advantage of Judge Robb's illness 
and to 11 pull a fast one” on the other members of the panel or on 
the District of Columbia Circuit. 



3926 


- i - 






Paul J» Larkin, Jr. 


Subscribed and sworn to me this $ day of September, 

i987 . 



Notary PuMrc fa,/ L ^ 

Vfr Co®irlfl<dno Eiplrn* JtQffux t4. ]9» 



3927 


DECLARATION OF JOHN HARRISON 


1. I was a law clerk to Judge Robert Bork, U.S. Circuit 
Judge for the District of Columbia Circuit, from August of 1982 
to August of 1983. During that period I was the clerk primarily 
responsible for the case of Vander Jagt v. O’Neill , a 
responsibility I took over from Paul Larkin. 

2. My recollection of the events concerning Vander Jagt and 
their order is not perfect, but I do recall what happened with 
the case and have several specific recollections. 

3. As Judge Bork's files reflect, he circulated his draft 
panel opinion in the case on September 17, 1982. The cover memo 
did not mention that the rationale was standing rather than 
political question or the Speech or Debate Clause. A week later. 
Judge Bork wrote a letter to Judge Gordon in which he explained 
the change of rationale and apologized for not having discussed 
the matter with Judge Gordon earlier. Although I do not remember 
the specific dates, I do remember circulating the first draft of 
Vander Jagt and I do remember Judge Bork writing the letter to 
Judge Gordon. 


88-374 0-89-40 



3928 


- 2 - 

I also remember Judge Bork remarking on (1) his 
conversation with Judge Robb in which they discussed the new 
rationale and (2) the fact that Judge Robb later did not remember 
the conversation. Judge Cork said that another of the judges on 
the court had spoken of a similar problem with Judge Robb. I 
think that Judge Bork talked about this after receiving Judge 
Robb’s memo of October 5, but I am not certain. 

5. After he decided not to go along with the standing 
argument. Judge Robb asked Judge Gordon to write an opinion for 
the two of them based on equitable discretion. That ground of 
decision is not mentioned in Judge Robb's conference memo of 
March 19, as Judge Bork noted in his memo of October 8. 

6. I specifically remember Judge Bork drafting the October 
8 memo. In particular, I recall his expression of regret about 
the confusion into which the case had been thrown as a result of 
his failure properly to communicate with Judge Gordon. Judge 
Bork seemed quite upset with himself for not having called Judge 
Gordon at the time he talked to Judge Robb about the change in 
rationale. 

7. Our chambers exchanged drafts with Judge Gordon's so 
that we could comment on one another's work. I discussed the 
case at some length with Judge Gordon's clerk and do not remember 
the change of rationale as a source of any friction between the 


clerks. 



3929 


- 3 - 


8. On at least one occasion, Judge Robb's wishes in the 
case were communicated to Judge Bork through Judge Wilkey. My 
recollection is that Judge Wilkey told Judge Bork that Judge Robb 
had decided to join Judge Gordon's opinion; earlier. Judge Robb 
had planned to issue a short statement of his own saying simply 
that he thought the case should be disposed of under the 
equitable discretion doctrine. 

9. Based on my experience as a law clerk on the D.C. 
Circuit, the implication that Judge Bork hoped somehow to mislead 
the other members of the panel by changing his ground of decision 
without telling them is implausible. A judge could hope to do 
this only if he believed that no one else would read his draft. 


jjL /j -. - - 

John Harrison 

Subscribed and sworn to me this _ day of 

September, 1987. 

STATE OF: District of Columbia 

Oanmfcac® bMn. l|. 1 «t> Carol L. Miles/Notary Public 




3930 


AFFIDAVIT OF RUTH LUFF 


I, Ruth Luff, being duly sworn on oath, state: 

1. I served as personal secretary to Judge Roger Robb, 
Circuit Judge on the U.S. Court of Appeals for the District of 
Columbia, from his appointment in 1969 to June 1983 after Judge 
Robb assumed senior status. 

2. The following account is my recollection of the events 
concerning Judge Robb's involvement in Vander Jaat v. O'Neill . a 
case heard by Judge Robb, Judge Bork and Judge Gordon in March 
1982 and decided by the court of appeals in February 1983 in an 
opinion by Judge Gordon joined in by Judge Robb. 

3. I was contacted several days ago by Tony Fisher, the 
Clerk of the U.S. Court of Appeals for the District of Columbia, 
who had been approached by someone from the Senate Judiciary 
Committee. I was told that the Committee wished to interview me. 
A staff person from the Committee called me later but did not 
mention the Vander Jaat case. He asked me about certain people 
and I told him I no longer maintained close contact with anyone 
from the court, and probably could not answer any of his 
questions. I mentioned that I was busy with a new career. At 
that point he thanked me and the conversation ended. 



3931 


- 2 - 

4. After I read the article in the Washington Post . 
concerning Judge Gordon and the Vander Jaqt case, my memory was 
refreshed and I recalled the case and many of the circumstances 
surrounding it. 

5. I recall specifically that Judge Bork visited Judge 
Robb in his chambers on this case after the case was heard, 
because Judge Robb asked roe to locate the file on the case and 
give it to him. Although I cannot remember precisely when this 
meeting took place, I believe it was in the spring of 1982. 

6. I remember that at one point later, perhaps in October 
1982, Judge Gordon called Judge Robb, and I got the impression 
that Judge Gordon was upset by something Judge Bork had written. 
After Judge Robb ended his conversation with Judge Gordon, he 
made a critical remark about Judge Bork to me, and said something 
to the effect of *He never came to see me, and he never let Judge 
Gordon know.* Judge Robb apparently did not recall his meeting 
with Judge Bork and apparently had told Judge Gordon that. 
Although I knew that Judge Bork had seen Judge Robb on this case, 
I did not mention it at the time. I remember Judge Bork's visit 
to Judge Robb on this case because of the controversy that ensued 
after this telephone call. 



3932 


- 3 - 

1. It is not surprising that Judge Robb did not recall his 
meeting with Judge Bork, because Judge Robb was going through a 
difficult period at this time and shortly thereafter went into 
the hospital. 

8. I do not understand all the attention this case has 
received. The exchange of draft opinions between judges, 
sometimes incorporating different rationales than that to which 
the panel members had initially agreed at conference, is common 
practice. I do not recall any hard feelings among judges in the 
past in any case in which this practice occurred. 

9. I am making this statement because I believe that, 
based on my memory of the events, the accusations of improper 
conduct by Judge Bork are unfounded and unfair, and the questions 
about Judge Bork's integrity caused by this matter deserve to be 
put to rest. 




« 0 (, 




Ruth Luff 


V 

Subscribed and sworn to me this tCJ _ day of September, 


Notary Public (A**' *-■ 


CcBafQlMdm r 



3933 


UNITED STATES COURT OF APPEALS 
DISTRICT OF COLOMBIA CIRCUIT 
WASHINGTON D C 2O00t 


ROBERT H BORK 

UNITED STATES CWCVIT MUSI 


October 1, 1987 


Honorable Joseph R. Biden, Jr. 

Chairman 

Committee on the Judiciary 
United States Senator 
Washington, D.C. 20510 

Dear Senator Biden: 

This letter responds to Senator Weicker’s letter of 
September 11, 1987, asking for my vievs on the religion clauses 
of the United States Constitution. Specifically, he asked me to 
comment upon the interaction between the establishment clause and 
the free exercise clause; upon the Lemon test set forth in Lemon 
v. Kurtzman : and upon the Supreme Court's recent decision in 
Wallace v. Jaffree . 

In the course of my testimony before the Senate Committee on 
the Judiciary, and in the other discussions I have had with 
members of the Senate, 1 have described my general approach to 
analyzing legal problems and deciding cases. I have also 
elaborated upon the reasoning in the articles, speeches, and 
judicial decisions which I have written. I have refrained from 
commenting specifically on other matters which might come before 
me on the United States Court of Appeals, or, if I am confirmed, 
on the United States Supreme Court. 

In Wallace v. jaffree . the Supreme Court held 
unconstitutional an Alabama statute authorizing a "moment of 
silence" in the public schools. This issue is one upon which I 
have never commented, and it is a recurring one before the 
Supreme Court. Indeed, I understand that the question of the 
constitutionality of a somewhat similar statute will soon be 
before the Court in the case of Karcher v. May . For these 
reasons, I do not believe it would be appropriate for me to 
discuss Wallace v. Jaffree . 

I am able to discuss the other matters raised by Senator 
Weicker's letter. 

Under the Lemon inquiry, a practice or statute will be held 
not to violate the Establishment Clause if it (1) has a secular 
legislative purpose, (2) does not have the principal or primary 
effect of advancing or inhibiting religion, and (3) does not 
foster excessive entanglement between government and religion. 
This has not been regarded as an absolutely rigid test, and the 
Court has on occasion ignored or downplayed it. For example, the 



3934 


hiring of legislative chaplains vould appear to run afoul of the 
Establishment Clause under the Lemon analysis, but the Court 
upheld the practice in Marsh v. Chambers on the independent basis 
of long-standing historical tradition. This is vhy the Court 
itself will sometimes describe the Lemon inquiry as a "test," but 
on other occasions explain that it is "no more than [a] useful 
signpostCJ" ( Mueller v. Allen ) or a "guideline" ( committee for 
Public Education v. Nvouist ). 

In my judgment , there exists some tension between the 
current interpretations of the Establishment Clause and the Free 
Exercise Clause. This arises from the fact that the actions 
which are held to be required under the Free Exercise Clause in 
many instances vould have been held to violate the Establishment 
Clause had they been taken absent a court order. For example, 
the Supreme Court in Wisconsin v. Yoder held that the Amish had a 
free exercise right to be released from school earlier than 
others. Yet if the State of Wisconsin had passed a statute 
according the Amish this privilege, that statute vould have been 
very difficult to sustain under the Lemon test, since it vould 
seem both to lack a secular purpose and to have the principal 
effect of advancing religion — indeed, one particular religion. 

This point was made by Professor Jesse Choper in his 1980 
article entitled "The Religion Clauses of the First Amendment: 
Reconciling the Conflict." He wrote: 

Thus, the seemingly irreconcilable conflict: on the 
one hand the Court has said that the Establishment 
Clause forbids government action whose purpose is to 
aid religion, but on the other hand the Court has held 
that the Free Exercise Clause may require government to 
accommodate religion. Unfortunately, the Court's 
separate tests for the Religion Clauses have provided 
virtually no guidance for determining when an 
accommodation for religion, seemingly required under 
the Free Exercise Clause, constitutes impermissible aid 
to religion under the Establishment Clause. Nor has 
the Court adequately explained vhy aid to religion, 
seemingly violative of the Establishment Clause, is not 
actually required by the Free Exercise Clause. 

For this reason, among others, I have expressed the view 
that too rigid an application of the Lemon test could be unwise 
in an area as fraught with subtleties as this one. If applied 
rigorously, the Lemon test might disallow the granting of 
religious exemptions to the draft, or the engraving of "In God ve 
Trust" on our coins. Perhaps it is in recognition of this that 
the Court has declined to apply the Lemon test with equal force 
in every decision. 

You may wish to know that I am hardly alone in my 
observations about the Supreme Court’s three-part establishment 
clause test. In addition to Professor Choper, Professor Philip 
Kurland of the University of Chicago, in his 1979 article, "The 


2 



3935 


Irrelevance of the Constitution: The Religion Clauses of the 
First Amendment and the Supreme Court," has said that the Supreme 
Court's three-part test has caused "much confusion and conflict." 
According to Professor Kurland, the three-prong test "hardly 
elucidates the Court's judgments. Nor does it cover the plastic 
nature of the judgments in this area. Judicial discretion, 
rather than constitutional mandate, controls the results." 

Consequently, it may be that no one simple "test" can 
capture the complexities of these issues in every case. As I 
commented in a speech at the Brookings Institution in 1985: "The 
subject at hand...ought to be approached with flexibility and 
caution. In particular, we ought to be chary of formulating 
clear rules for every conceivable interaction of religion and 
government." What we need to ask in each case is whether a 
challenged practice is consistent with the core values of 
religious freedom and toleration which underlie the first 
amendment. 

Finally, I would like to reiterate what I said before the 
Judiciary Committee: "I am convinced that the principle of 
nonestablishment is essential to our society, and I know the 
framers thought so, particularly with the memory of the religious 
wars In Europe in mind, and I think the principle of free 
exercise is also vitally important." 



Robert H. Bork 


Honorable Lowell Weicker 
Honorable Strom Thurmond 


3 



3936 


IGWCUP WEICKER.JA 
COVNlClIftT 
»•« i 

ww mi* 

nws 

*M*C» 

IA6(W> *►.(> hUVM. «ISOIMIS 

8v*.i ausmrj-s 


'Bnirtd States Senate 

WASWHCTOK. DC 205 10 


September 22, 1987 


* 1 *T» 0 "tll 


CfUDCt^Cftl 



**o»i JC> t >».*• • 

T»«t i«i i-»»h! «:j» 
ha«tfor:> 

O*' <*»» ‘**1 Hit) 
♦p»«i 

>«• Mu ■-*«>-« 
WATKRtUR’l 
•M 6*“r Jtwii p*),” 


The Honorable Robert H. Bork 
United States Circuit Judge 
United States Court of Appeals 
District of Columbia Circuit 
Washington, D,c. 20001 

Dear Judge Bork: 

Thank you for your letter of September 11, 1987 end the attached 
letters to the Washington Post from Rabbi Haberman and Hr* 
Citkin. 


In furtherance of our previous discussion, I would like to 
solicit your comments on the Lemmon test in establishment clause 
cases. Specifically I would like to know whether you endorse 
this test and if you do not endorse the Lemmon test, I would like 
to know what approach you would take in deciding cases under the 
establishment clause. 1 am also quite interested in your views 
on the interaction between the establishment clause and the free 
exercise clause. 


Although 1 am aware that you cannot t«Ll me how you would decide 
the case, 1 would like you to discuss, to the extent possible, 
your views on the case of Wallace v. Jaffree . Do you think that 
the court approached the case correctly? What other factors 
would you have taken into account in deciding the case? Also, 
please comment on Justice Powell's concurring opinion. 



LYf/dcs 



3937 


UNITED STATES COURT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT 
WASHINGTON O C 20001 


ROBERT H PORK 

KNifie STAfft C<*CUlT JVOOI 


OCT 2 1957 


Honorable Joseph R. Biden 
Chairman 

Committee on the Judiciary 
United States Senate 
Washington, D.C. 20510 

Dear Mr. Chairman: 

I submit this letter in answer to a letter from Senator 
Patrick Leahy dated September 23, 1987. 

Senator Leahy asked for my comments on a 1974 article by the 
Los Angeles Times suggesting that Chief Justice Burger and 1 met 
on the issue of timely filings. I cannot recall a meeting such 
as the Times described taking place between the Chief Justice and 
me. We did, however, discuss two years later changing the 
procedure under which the Solicitor General's Office filed a 
response to every certiorari petition in criminal cases. I 
proposed that my Office file a response only in those cases where 
it would be of material assistance to the Court. A copy of a 
letter that I sent to the Chief Justice formalizing my suggestion 
is attached. 

I believe the record should reflect that the Court accepted 
my proposal. It has remained in place for some fourteen years, 
and I understand that the Solicitor General's Office currently 
waives response in approximately fifty percent of the relevant 
petitions. The Office has long had a reputation as a small, 
collegial operation. In ray view, it is unlikely that the Office 
could have maintained that atmosphere without this solution to 
the workload problem. 

During my tenure as Solicitor General, I made every effort 
possible towards timely filing in the Supreme Court. In spite of 
those efforts, some papers were not filed within the Court's 
deadlines. As my letter to Chief Justice Burger explained, much 
of the delay was attributable to the fact that government 
litigation often reguires the assistance and concurrence of many 
components inside the Department of Justice not to mention 
various other agencies. Moreover, occasional tardiness was not a 
problem confined to my term in office, as briefs were filed late 
during the tenure of some of my successors. This is in no way a 
criticism of those particular Solicitors General, but merely a 



3938 


- 2 - 


demonstration that the problem of timely filing, given the volume 
of cases and the personnel available, proved as intractable for 
others as it did for me. 

If I can provide any further information, please do not 
hesitate to call. 


Sincerely, 

Robert H. Boric 


Attachment 

cc: Honorable Patrick Leahy 

Honorable Strom Thurmond 



3939 



Office of tfje Solicitor ©crural 

SQaSijmglwt, J3.C. 20530 

September 24, 1976 



The Chief Justice of the United States 
The Supreme Court of the United States 
Washington, D.C. 20543 

Dear Mr. Chief Justice: 

Pursuant to our recent conversation, I am writing 
tid-s letter to supply you with some background information 
on. the filing of responses by the United States to cer¬ 
tiorari petitions in criminal cases and to propose some 
changes in our procedures that 1 believe will be mutually 
beneficial. Since I am reluctant to institute any changes 
that the Court would find undesirable or burdensome, I 
would appreciate it if you could advise me if the Court 
would object to the proposal set forth below. 

As you may know, our present policy, v/hich has 
been in effect since before I became Solicitor General, 
is to attempt to file responses to certiorari petitions 
in every case in which the United States or an agency, 
officer or employee thereof is a respondent- Because of 
the rapidly escalating volume of such petitions in recent 
years, as well as of other facets of the Court's business 
with which we are concerned, it has become increasingly 
difficult for ns to produce timely filings of briefs in 
opposition, as well as to maintain a high level of quality 
in these filings. This matter has unquestionably been the 
most burdensome and seemingly intractable administrative 
problem of my tenure as Solicitor General, with consequences 
that affect our ability to serve the Court.well in its 
difficult task of selecting cases for plenary review and 
that also, understandably, generate a certain amount of 
resentment toward the government on the part of the private 
bar, which can hardly be cognizant of all the reasons why 
the government has difficulty filing timely responses in 
every case. 

^The volume of Supreme Court cases to which the 
United States is a party, and especially of criminal cases, 
has been increasing at a considerably faster rate than the 
Court's overall docket. To illustrate, the total number 
of cases docketed in the Court during the 1975 Term was 



3940 


- 2 


up about 15% from the 1970 Term (from 3420 to 3939), yet 
the iti forma pauperis cases in which we were respondent 
(the vast preponderance of which are criminal cases) in¬ 
creased 51% during the same period (from 649 to 983). 

Overall, the United States' participation in cases acted 
upon by the Court rose from 38% of all cases in the 1970 
Term to 47% of all cases in the 1975 Term. And these 
statistics do not tell the whole story. The problem is 
exacerbated by the fact that certiorari petitions in 
criminal cases have come in recent years to raise more issues, 
which substantially increases the amount of time required 
to prepare the response in each case. 

While we have increased the number of attorneys 
in the Solicitor General's Office in order to enable us to 
cope with the increasing volume and complexity of Supreme 
Court litigation in which the United States is involved, 
we nevertheless remain dependent for vital assistance upon 
other parts of the Justice Department, which unfortunately 
have not been able to increase their capacity to assist 
in Supreme Court litigation at the same rate. This problem 
is particularly acute in the Criminal Division, upon which 
the brunt of the enlarged caseload has fallen. As you know, 
the Appellate Section of the Criminal Division is assigned 
the function of preparing draft briefs or memoranda in 
response to practically all petitions in federal criminal 
cases, as well as in federal prison and parole litigation 
and immigration cases. Because of budgetary limitations, 
the staffing of the Appellate Section, both professional 
and secretarial, has not increased recently (in fact, it 
has declined somewhat in the last 12 to 18 months), and 
it is unable in a substantial number of cases to provide 
us with timely draft responses to certiorari petitions. 

For example, as of September 14, 1976, there were 57 
criminal cases in which our responses were overdue in Court - 
but in which the Criminal Division, for the reason stated 
above, had not provided us with a draft response, and there 
were 88 other cases in which the Criminal Division had 
failed to meet our internal deadlines for transmitting 
drafts to my office. I have discussed the situation with 
the Criminal Division repeatedly, and they have convinced 
me that with the present staff size in the Appellate Section, 
they cannot supply us with drafts on time. 

As a result, I have concluded that we should — 
temporarily, at least — discontinue our efforts to file 
responses to every certiorari petition filed against the 
government in a criminal case. I have given considerable 
thought to the alternatives and have developed a proposal 
that I believe to be worth implementing on a trial basis, 
for a period of six months or so. Under this proposal. 



3941 


3 - 


I would assign several lawyers from my office and from 
the Appellate Section of the Criminal Division the task 
of reviewing all petitions in criminal cases (including 
prison and parole litigation) as they are filed, with an 
eye to determining in which cases a response by the 
United States would be likely to be of material assistance 
to the Court in acting upon the petition. On the basis 
of this screening, it should prove possible to identify 
a significant number of petitions (perhaps one-third to 
one—half) that do not require a response- We would of 
ccurse continue to respond in any case that appears to 
present a complex or potentially significant issue, or 
where the factual background is confused or difficult to 
follow from a reading of the petition or the opinion of 
the court of appeals. 

Having done this initial screening, we would 
then send a letter to the Clerk of the Court, perhaps 
on a weekly basis, listing every case reviewed and 
indicating whether we plan to file a response. Naturally, 
in any case in which we planned to file no response, we 
would still prepare a response if requested to do so by 
the Court. We would report our intentions to the Clerk 
in every case within two weeks of the time the petition 
is served on us. 

By means of this approach, we should be able to 
reduce significantly the number of cases in which we file 
responses. If this approach works as I hope, the cases 
eliminated would be ones in which a response by us is not 
particularly helpful or needed by the Court in acting on 
the petition —- i..e., cases in which the issues presented 
are plainly unsuitable for review by the Court or in — 
which there is no need to add anything to the opinions of 
the lower courts. The time saved by this approach could 
be devoted — more profitably, I believe — to briefs or. 
the merits and to more careful consideration of the cases 
in which a response to the certiorari petition is deemed 
needed. 


This approach offers other possible benefits. 

For instance, under present practice as 1 understand it, 
the Clerk distributes the petition to the Court about 
50 days*after it has been filed (roughly the time provided 
by Rule 24(1) for the filing of the government's response). 
Under my proposal, he would be able to distribute those 
cases in which we indicate we do not intend to respond 
five or six weeks earlier than he now does. In most 
instances, the Court will be able to act upon the petitions 
in this group of cases considerably faster than is now 



3942 


- 4 - 

possible. And, of course, if the Court disagrees with 
our judgment that no response is necessary in any given 
case, it can call for a response, which we uould strive 
to supply expeditiously. 

As I mentioned when we spoke of this the other 
day, we are also pursuing other avenues of possible 
relief, principally an effort to secure a significant 
number of additional lawyers and staff for the Appellate 
Section of the Criminal Division. This request is in 
the process of preparation for transmission to the Office 
of Management and Budget. It is difficult for me to 
predict whether the request has a substantial prospect 
for success; but even if the additional positions are 
authorized in the relatively near future, it will take 
time to hire and train the added personnel, so that 
Immediate relief from the present predicament is impossible. 

I appreciate your interest and understanding in 
connection with this matter, and I look forward to 
learning of the Court's views regarding my proposal. 


Sincerely, 



Robert H. Bork 
Solicitor General 



3943 


United Crates Senate 


September 23, 1987 


Honorable Robert H. Bork 
U, S. Court of Appeals for the 

District of Columbia Circuit 
U. $. Courthouse, Hoorn 3128 
3rd Street and Constitution Avenue, NW 
Washington, DC 20001 


Dear Judge Bork: 


Enclosed please find a copy of a letter I have sent to former 
Chief Justice Burger, soliciting his comments on an article that 
appeared in the November 10, 197*1 edition of the Los Angeles 
Times . A copy of that article is also enclosed. 

I believe that your recollections about the alleged incident 
described in this article, and any other comments you may wish to 
make about the surrounding facts and circumstances, would be 
useful to the Judiciary Committee as it considers your nomination 
to the Supreme Court. Accordingly, I invite you to submit for the 
record any written statement on this subject that you fee] 
appropriate. 


Sincerely, 

/ PATRICK LEAHI\ / 
United States Senator 


1 


3944 


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?A»H SIMON i iNuJ’> 


United States Senate 


COMMITTEE ON THE JUDICIARY 
WASHINGTON DC 20510-6275 


September 23, 1987 


Honorable Warren E. Burger 
Supreme Court of the United States 
1 First Street NE 
Washington, DC 205^3 


Dear Mr. Chief Justice: 

As I mentioned when you appeared before the Judiciary 
Committee this morning on the nomination of Judge Bork, there is 
one additional question to which I would appreciate your response. 

The Los Angeles Times reported on November 10, 197^» under 
the headline "Court Complains of Tardiness by Solicitor General," 
that you "summoned [Solicitor General] Bork to [your] chambers and 
complained for more than an hour about the solicitor general's 
chronic tardiness in filing briefs and memoranda" in cases pending 
before the Supreme Court. I enclose a copy of the article for 
your review. 

As you have frequently noted, the Supreme Court is called 
upon to handle an extraordinary workload. The allegation 
contained in this article certainly appears relevant to the 
nominee's capacity to manage efficiently the business of the 
Supreme Court. 

The article states that you declined to discuss the subject 
matter of your meeting with the Solicitor General. Because you 
may still find it inappropriate to discuss this matter in a public 
forum, I decided not to ask you about it during this morning's 
hearing. 

However, because this allegation has been repeated in some 
recent newspaper and magazine articles about Judge Bork’s 
nomination, I believe it would be helpful to the Committee to have 
your recollection as to whether the incident described by the Los 
Angeles Times occurred. If it did, I would welcome any further 
comments you may have about the facts and circumstances 
surrounding this incident. 

I am sending a copy of this letter to Judge Bork, along with 
an invitation for him to submit any written comments that he 
thinks would be helpful to the Committee in evaluating the news 
article I have enclosed. 




3945 


Honorable Warren E. Burger 
September 23, 1987 
page two 


If I may reiterate one of my comments to you this morning, I 
believe that it was quite beneficial to the Senate's performance 
of its constitutional functions to have your thoughtful testimony 
on this nomination. I look forward to your response to this 
letter. 


Sincerely, 



Senator 


cc: Honorable Robert H. Bork 



3946 


[From the Los Angeles Times, Nov 10, 1974] 

Court Complains op Tardiness by Solicitor General 

BORK CALLED IN BY BURGER; SOME GOVERNMENT BRIEFS FILED UP TO 4 MONTHS LATE 

(By Linda Mathews) 

Washington. —The federal government and Solicitor General Robert H. Bork, its 
advocate before the Supreme Court, are in trouble with Chief Justice Warren E. 
Burger, for slowing down the high court’s work. 

In an extraordinary move, Burger recently summoned Bork to his chambers and 
complained for more than an hour about the solicitor general’s chronic tardiness in 
filing briefs and memoranda with the justices. Some filings have been as much as 
four months late. 

Bork refused to discuss the meeting. Burger, through a court spokesman, would 
say only that he meets with the solicitor general on routine matters * * * and saw 
no reason to disclose the subjects they discussed. 

But two well-placed sources confirmed that the session was specifically to discuss 
the lateness problem. They said that Burger, although critical, expressed sympathy 
for Bork because, like the court itself, the solicitor general’s office carries a heavy 
work load. Bork promised to be more prompt. 

Burger apparently called the meeting at the suggestion of several justices who 
were startled and concerned about the continual deliquency of the Justice Depart¬ 
ment in the year that Bork, a former Yale law professor has served as solicitor gen¬ 
eral. 

At least one justice, William O. Douglas, reportedly believes that Bork’s lateness 
not only interferes with the justices’ work but deprives opposing parties of their 
rights to speedy disposition of their cases. 

The reason the justices were surprised by Bork’s inability to meet deadlines was 
that past solicitors general have earned a reputation unequaled by the private law¬ 
yers who practice before the court for reliability. 

''Griswold was never late,” said one court source, referring to Bork’s immediate 
predecessor, Erwin Griswold. “We couldn’t quite believe it when Bork started miss¬ 
ing deadlines and we got hit with complaint after complaint from lawyers on the 
other side.” 

At one point, the court heard and disposed of nearly 100 cases without ever hear¬ 
ing from Bork. The memoranda were piled up on the desk of a Bork deputy. 

The court official who schedules oral arguments has grown accustomed to juggling 
and rejuggling his schedules because government cases were not ready to be argued. 
He discovered that the only way to prod Bork’s office into action was to refuse ex¬ 
tensions. 

In an interview, Bork admitted that his office had a “disastrous summer” but 
said, that members of his staff were slowly catching up and would soon be abreast 
of their work. 

“The problem essentially is the case load,” he explained. “In the 1963 term, the 
solicitor general’s office was involved in 910 cases, about 36% of the Supreme 
Court’s docket. In 1973, we handled 2,248 cases which is about 48% of the docket. 
The court’s case load increases evey year, but ours is increasing even faster.” 

His office has not grown, Bork said, to keep pace with the expanding docket. Two 
lawyers were added last year, bringing the total to 16, plus Bork. This small staff 
approves almost all government appeals to the Supreme Court, rewrites draft peti¬ 
tions and briefs submitted by other agencies and divisions of the Justice Depart¬ 
ment and handles almost all of the government's oral arguments before the court. 

Other sources familiar with Bork’s office say that, although the growing case load 
accounts for some tardiness, Bork also should be held personally responsible. "He’s 
a fine scholar and a very nice man, but a lousy administrator,” one person said. 

Bork was slow to acknowledge that his office was slipping behind and then, de¬ 
spite the rather cut-throat reputation he gained by firing special prosecutor Archi¬ 
bald Cox, too easy-going to correct the situation, another source said. 

For nearly two months last fall, Bork was forced to ignore his duties as solicitor 
general while he served as acting attorney general. He inherited that office when 
Atty. Gen. Elliot L. Richardson and Dep. Atty. Gen. William D. Ruckelshaus re¬ 
signed rather than discharge Cox. 

Sources also blamed Jewel LaFontant, a Bork deputy, for some delay. They say 
that former President Richard M. Nixon appointed her to the high-ranking post be¬ 
cause she was a black Republican, not because of her legal experience, and that she 



3947 


has not shouldered her share of the work. Bork vigorously denied this, saying, “Mrs. 
LaFontant does her work and should not be blamed for our problems.” 

Whatever the reason for government delays, they continue to irritate lawyers on 
the other side, who have called from all over the country to complain. 

“The government’s opponents are unfairly affected when the government abuses 
the Supreme Court rules,” said Edward Steinman, a University of Santa Clara law 
professor who represents San Francisco residents challenging the ban on federal 
hiring of aliens. 

Bork’s brief in that case arrived more than two months behind schedule, despite a 
15-day extension. But the Supreme Court clerk refused to extend Steinman’s time 
more than 18 days. 

Lawyer’s in two cases have done more than complain. They recently filed formal 
motions asking for dismissal of their cases, which the government had appealed to 
the Supreme Court after losing in lower courts. 

Attorneys for Raymond G. DeChamplain, an Air Force master sergeant accused of 
spying, told the court that DeChamplain would spend extra time in prison because 
of Bork’s delay in filing the government brief. 

DeChamplain has already been imprisoned three years, although his first convic¬ 
tion was reversed and a federal court halted the second court-martial when the gov¬ 
ernment refused, on national seucrity grounds, to share some evidence with the de¬ 
fense lawyers. The government appealed the injunction. 

When DeChamplain’s attorneys asked for dismissal of his case, Bork had already 
received a three-week extension in filing time and then had missed the new dead¬ 
line without bothering to ask for a further extension. The brief finally came in Sept. 
30, seven weeks after it was originally due and a month after the extension ran out. 

Citing the “long history of failure on the part of the government to comply with 
the filing requirements of this court,” DeChamplain’s lawyers said Bork should not 
be given “one more chance.” 

"The government should be made to suffer the penalty imposed upon any litigant 
who arrogantly refuses to comply with the rules of the court,” they said. “Dismissal 
of the appeal is the only proper remedy.” 

Nevertheless the court refused to dismiss the case Oct 15, with only Douglas dis¬ 
senting. A similar motion, in a case involving the rights of Indian tribes to regulate 
the sale of liquor on their reservations, was also turned down. In that case, the gov¬ 
ernment obtained two extensions and still filed six weeks late. 

Court insiders said the justices’ refusal to dismiss such cases from their docket did 
not mean they would tolerate future government delays. Some justices apparently 
believe Bork will be dealt with sternly. 

Justice Harry A. Blackmun, speaking informally to law students last week in At¬ 
lanta, said the court might be forced to take the drastic step of refusing to accept 
tardy briefs from Bork if the delays continued. 

Aside from turning down briefs and dismissing government appeals, there is noth¬ 
ing the court can do to discipline Bork. He is an officer of the executive branch and 
subject only to presidential removal. 

Because the government is a party—petitioner, respondent, or friend of the 
court—in nearly half the cases before the justices, the tardiness causes delays. 


3948 


UNITED STATES COURT OF APPEALS 
DISTRICT OF COLUMBIA CIRCUIT 
WASHINGTON D C 20001 


ROBERT H BORK 

UMtTce »TATCt circuit judm 


October 5, 1987 


Honorable Joseph R. Biden, Jr. 

Chairman 

Committee on the Judiciary 
United States Senate 
Washington, D.C. 20510 

Dear Hr. Chairman: 

This letter is in response to Senator Byrd's questions 
concerning my views on campaign finance. Initially, I should 
point out that, as Solicitor General, I signed a brief on 
behalf of the Federal Election Commission, defending the 
Federal Election Campaign Act against a First Amendment 
challenge. I also signed an amicus brief on behalf of the 
Attorney General setting forth the general analytical framework 
relevant to the decision of the case. The case to which I am 
referring is, of course, Buckley v. Valeo , 424 U.S. 1 (1976). 

Subsequent to my leaving the post of Solicitor General, I 
have made some public statements critical of some aspects of 
Buckley . I believe that you will find my disagreement was with 
certain of the details of the regulatory scheme and some of the 
Justifications offered for the detailed regulation of core 
First Amendment political activities, rather than with campaign 
finance reform generally. 

(1.) With regard to Federal Election Campaign Act's 
limitations on contributions to political campaigns, I remarked 
in a speech at the University of Michigan in 1979 that I found 
the dual justification of limiting "corruption and the 
appearance of corruption resulting from large individual 
financial contributions" to be "very strange."!/ I regarded 
the severity of the contribution limitation as an impediment 
toi engaging freely in political speech, because, as I argued, 
political contributions permit the donors to "increase speech" 
with which they agree by amplifying the voices of those who 


V University of Michigan Speech at 27. 




3949 


will most effectively make the points sought to be made. Thus, 
I viewed such regulations as "direct limitations upon the 
amount and effectiveness of political speech."^/ 

It was therefore with reference to what I regarded as the 
extreme nature of the limitations actually Imposed on political 
speech that I considered It as odd that the Court accepted the 
reasons that It did for the restraint. I wish to be very clear 
on this point. I regard the limitation of corruption in 

f overnment as an Important governmental Interest. However, I 
elleved that the severe contribution limitation was not 
narrowly tailored to the Interest of eliminating actual 
corruption, because a disclosure requirement, by exposing to 
the voting public any attempt to purchase political Influence, 
would adequately serve that goal In a manner less Intrusive of 
free speech. I would also wholeheartedly endorse certain 
measures to eliminate the appearance of corruption. But I 
found It strange to accept the elimination of the appearance , 
rather than the actuality , of corruption as a justification for 
the really very draconian limitations that were placed on 
contributions in the Act. 

(2.) You have also asked whether X believe that a 
contribution of $100,000 might not, even In a presidential 
campaign, induce corruption on the part of a donor or 
candidate, particularly if the contribution Is not required to 
be disclosed. First, I believe that politicians are generally 
honest, and contributors, even of large amounts, are usually 
seeking to amplify the voices of those 1*0 csn most effectively 
express the political message that the donor wants to convey. 
Putting that aside, however, I acknowledge that a large 
donation, such as the amount cited by you, could present the 
problem of corruption If made In secret and undisclosed. 

Without public disclosure, I agree that unsavory deals might In 
some cases be made at such a price, and that prophylactic 
measures are useful to prevent corruption under these 
circumstances. 

As I stated in my 1979 speech, however, I believe that 
disclosure of such large contributions would adequately serve 
the policy goal of preventing corruption by putting sources of 
financial support on public record and subjecting to public 
scrutiny any untoward favoritism to such political 
patrons .3' With full disclosure to the public. It seemed 
unlikely to me that any politician would take the politically 


y Id. at 26-27. 
11 Id. at 28. 



3950 


- 3 - 


suicidal move of selling his or her vote for even as much as 
$100,000. I have also observed that the extremely low level of 
contributions necessary to trigger the disclosure requirement 
may Itself pose constitutional problems to the extent that it 
is so low that it reaches a large class of very small 
contributions as to which corruption would be unthinkable, but 
at the same time threatens to chill the speech of the 
contributor who may wish to express his support anonymously. 
Federalist Society Symposium, Mar. 7, 1986, at 6. Obviously, 
these matters involve a large measure of difficult line 
drawing, and therefore, the briefs and argument in such a case 
would take on particular importance. 

(3.) Similarly, you ask about a remark made in the 
question and answer period during my 1986 talk at the Federal 
Society, in which I discounted the 1lkelihood of bribery "no 
matter what size range that you pick" for a contribution. 

First, I did not foreclose the possibility of bribery when 
large contributions are Involved. Second, I was again 
operating on the assumption of a system in which very large 
contributions must be disclosed to the public, and in which 
severe criminal penalties are enforced for actual bribery. 
Third, 1 went on to explain my view that a contribution is 
generally a means of amplifying a political message by 
supporting one who is particularly adept at presenting the 
message which the donor endorses.’/ I offered that theory as 
what I believed to be a more plausible alternative to the 
bribery theory of what motivates even very large political 
contributions. 

I left the door open by stating that. If the premise of 
likely corruption were proved, I felt that it would be in "a 
size range if there were any, much, much higher than anything 
contemplated by current law. "£/ Indeed during my prepared 
remarks that evening, I stated my disagreement with the Court's 
approval of the current, extremely low level of contributions 
as a basis for an anti-corruption rationale. I stated: 

The political corruption rationale for the 
regulation of contributions is perhaps not as 
potent as the Court supposes. The amounts 
that are regulated are far below anything 


4/ Federalist Society Symposium, Mar. 7, 1986 
5/ Id. 


at 57. 



3951 


- 4 


that could be expected to result In 
purchasing anybody's vote on an issue.6/ 

This quote reflects that there may be some levels at which 
contributions could purchase votes on an issue, and suggests 
that some regulation might well be constitutional. I should 
stress that I was discussing past decisions and not suggesting 
that I would favor overruling those decisions in the future. 

Too often in this confirmation process, people have assumed 
that I want to overrule any case whose reasoning I have ever 
criticized. That is not true, and I discussed at length with 
the Committee the fact that precedent is to be respected and 
the considerations that must be weighed before engaging in the 
serious act of overruling any precedent. 

(4.) I fully recognize the need to prevent, as you put it, 
"serious adverse effects on the political process." As I have 
stated, for example, I believe that the government has a 
compelling Interest in stemming political corruption, and 
Congress may, of course, adopt suitable laws to require 
disclosure of large campaign contributions, coupled with the 
application of severe criminal penalties for actual bribery. I 
do not believe, however, that the Supreme Court has tolerated 
laws designed to prevent the "undue influence" of some elements 
of society on the political process, lhat would pose the 
inherent danger of a government punishing its political enemies 
or censoring those with whom the ruling hierarchy disagrees. 

In Buckley v. Valeo , 424 U.S. 1, 48 (1976), the Court 
rejected the argument that "equalizing the relative ability of 
individuals and groups to influence the outcome of elections" 
could Justify portions of the Act limiting the amount that an 
individual could spend relative to an identified candidate. 
Eight members of the Court unambiguously stated that "the 
concept that government may restrict the speech of some 
elements of society in order to enhance the relative voice of 
others is wholly foreign to the First Amendment." Id. at 
48-49. Similarly, in First National Bank of Boston v. 

Bellottl . 435 U.S. 765 (T57BJ7 the Court invalidated a state 
scatute limiting corporate expenditures to influence certsln 
kinds of public referenda. Justice Powell's majority opinion 
rejected the argument that the restrictions were Justified 
because "corporations are wealthy and powerful and their views 
may drown out other points of view." Id. at 789. Short of 
record evidence that auch corporate advocacy would undermine 
the democratic processes. Justice Powell concluded that the 
tonic for any such excessive corporate "influence" was the good 


6/ Id. at 6. 



3952 


5 - 


judgment of our citizens In assessing the relative merits of 
arguments presented to them. I<K at 789-92. 

(5.) I do not recall that I Intended to single out any 
group or groups In stating that the shifts of political power 
effected by the Act "were Intended." This was merely a casual, 
rhetorical observation. I do not recall that I relied on any 
particular evidence to support this rhetorical point. I do 
believe that a number of commentators have noted that this Is 
the clear effect of the law. 

(6.) I articulated a theory of campaign contributions In 
my 1979 speech at the University of Michigan. I argued that 
"[t]he important function of a contribution Is to increase 
speech that the contributor agrees with, speech that Is more 
persuasive than his own voice could ever be, speech by a 
political leader or one In the process of becoming a political 
leader In a way the contributor can never be and does not wish 
to be."Z' In sum, "It’s a question of getting speech out 
effectively."®' This is not to say that money 1 b the same as 
speech, but, to borrow from my concurring opinion In Oilman v. 
Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc ), It Is essential 
In the area of political speech to apply the First Amendment to 
modern circumstances. As I said In my 1979 speech, "[t]he hard 
fact of modern politics Is that without money there Is no 
speech."9/ Virtually every means of communicating Ideas In 
today's mass society requires the expenditure of money, and 
suppressing the ability of a person or a group to spend money 
to support the expression of favored Ideas suppresses the 
communicative power of that person or group. 

To Illustrate, almost no one would urge that the government 
should restrict the amount of money that a person could donate 
to a particular public Interest group or to a number of 
groups. That Is because the contributions of Individuals to 
such political advocacy groups provide the means by which 
diverse persona assemble In order to communicate effectively. 
The ability of like-minded people to express themselves 
collectively means that their voices can be fully heard In our 
society. As I noted at the Federalist Society last year, there 


U University of Michigan Speech at 26-27. 

§/ Federalist Society Symposium, Mar. 7, 1986, at 58. 
£/ University of Michigan Speech at 25. 



3953 


6 - 


is little danger that in our highly pluralistic society, "any 
major, even minor, point of view is going to go unfunded."12/ 

(7.) As I have stated, a campaign contribution may be the 
essential means by which a campaign donor engages in effective 
political discourse. If a donor contributes a given sum to a 
candidate and some of the money goes to poll taking, rent, or 
utilities, that money is still going to help the candidate to 
get his or her message across, and it is the message that the 
donor is trying to support. Many things that are not speech 
per se in our society qualify for First Amendment protection 
because they are closely related to speech. Thus, as I stated 
in 1979, renting out an auditorium is not itself speech, but 
the ability of the auditorium owner to rent the auditorium for 
political debate nonetheless implicates a very significant 
First Amendment intereet.il/ 

Sincerely, 

Robert H. Bork 


RHB/jac 


cc: Senator Robert C. Byrd 
Senator Strom Thurmond 


IQ/ Federalist Society Symposium, Mar. 7, 1986, at 58. 
ii/ University of Michigan Speech at 27. 



3954 


UNITED STATES COURT OF APPEALS 
DISTRICT Of COLUMBIA CIRCUIT 
WASHINGTON D C 20001 


ROBERTH BORK 

»»■*** (■■Cult juOCt 


October 5, 1987 


Honorable Joseph R. Blden, Jr. 

Chairman 

Committee on the Judiciary 
United States Senate 
Washington, D.C. 20510 

Dear Hr. Chairman: 

This letter responds to Senator Simon's letter of 
September 25, 1987, asking for my views on the televising of 
Supreme Court proceedings. I have never really considered 
whether Supreme Court proceedings should be televised. As you 
mention in your letter, there are many factors that the Court 
should consider as It weighs the Issue of televised 
proceedings. I would approach this Issue In much the same way 
as Chief Justice Rehnqulst and Justice Scalla did. If 
confirmed, I would give full and sympathetic consideration to 
the Issue of televising Supreme Court proceedings. 


Sincerely, 



Robert H. Bork 


RHB/jac 



3955 


k>iu ki* miAfiw 

Bratcd Starts 3cnart 

WASHINGTON DC 2OS 10 


September 23, 19^7 


lion. Robi?rt aork 

United States Court of Appeals 

for the District of Columbia Circuit 
U.S. Courthouse 

Third Street and Constitution Avenue 
Washington, O.C. 20001 

Dear Judge 3ork* 

At last year's confirmation hearings on the nomination of 
Justice Rehnquist as Chief Justice and Judge Antonin Scalia as 
associate justice, both nominees were asked their views on 
televising Supreme Court proceedings. 

Following are the answers given by the nominees to this 
ques tion; 

Judge Rehnquist: "If 1 were convinced that coverage 
by television of the Supreme Court would not distort 
the way the court works at present, 1 certainly would 
give it sympathetic consideration." 

Judge Scalia: "If confirmed, I would, of course, 
want to consult my colleagues on this matter, but 
would be inclined to agree with justice Rehnquist, 

As chairman of the Administrative Conference, I 
recommended the televising of important open agency 
proceedings to the extent there was an audience for 
them." 

There ace many factors that the Court has to consider as it 
weighs the issue of televised proceedings, and there may well 
be sufficient reasons to make such a step inadvisable. 

However, my colleagues and I would appreciate knowing your 
initial views on this matter for the purposes of the hearing 
record. 



U.S. Senator 


230 S Dt*»eoAN 
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Chicago H 60601 
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SmnorKiO IL 62 701 
217/4*2-4960 


8767 Stats St 
Sviti 212 

f a»T St Louis IL 62201 
618/398-7707 


250 Wist CncMy 
Room 1i6 6 
C*«0ONO*it IL 62901 
618/467-3663 




3956 


3956 


United Stares Senate 

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iMIOO UAWnll <.r«1> COV'Ml 


Septembet 2b, 1987 


Hon. Joseph R. Biden, Jr. 
Chairman 

Committee on the Judiciary 
United States Senate 
Washington, D.C. 20510 

Dear Hr. Chairman: 


At last year's confirmation on the nomination of Justice 
Rehnquis t as Chief Justice and Judge Anton Scalia as 
associate justice, both nominees were asked their views on 
televising Supreme Court proceeedings. 


Following are the answers given by the nominees to this 
question: 

Judge Rehnquist: "If 1 were convinced that cover¬ 
age by television of the Supreme Court would not 
distort the way the court works at present, 1 
certainly would give it sympathetic considera¬ 
tion ." 

Judge Scalia: "If confirmed, I would, of course 
want to consult my colleagues on this matter, but 
would be inclined to agree with Justice Rehnquist. 
As chairman of the Administrative Conference, I 
recommended the televising of important open 
agency proceedings to the extent there was an 
audience for them." 


There are many factors that the Court has to consider as 
it weighs the issue of televised proceedings, and there may 
well be sufficient reasons to make such a step inadvisable. 
However, oy colleagues and I would appreciate knowing Judge 
Bork's initial views on this matter for th^ purpose of the 
hearing record. 


( 


i ordially 

au1 SimOn 
U.S. Senator 



3957 


UNITED STATES COURT OF APPEALS 
DISTRICT OF COLUMBIA CIRCUIT 
WASHINGTON O C 20001 


ROBERT h BORK 


October 5, 1987 


Honorable Joseph R. Biden, Jr. 

Chairman 

Committee on the Judiciary 
United States Senate 
Washington, D.C. 20510 

Dear Hr. Chairman: 

This letter responds to the Senate Judiciary Committee’s 
request of October 1, 1987, asking for ay views on whether 
Congress and/or state legislatures have authority under the 
Constitution to proscribe unfair advertising even In situations 
where the advertising is truthful and non-deceptlve. 
Specifically, I have been asked to comment on whether my views 
on this Issue differ from the Supreme Court's In Central Hudson 
Gas fc Corp. v. Public Serv. Comm'n of New York , 447t)T.S. 

557 (19801, and Posadas de Puerto Rico Assocs. v. Tourism Co. 
of Puerto Rico . 106‘5. Ct. 29t>tt (1986).- - 

In the course of ay testimony before the Senate Committee 
on the Judiciary, and in the other discussions I have had with 
members of the Senate, I have described my general approach to 
analyzing legal problens and deciding cases. 1 have also 
elaborated upon the reasoning In the articles, speeches, and 
Judicial decisions which 1 have written. I have refrained from 
commenting specifically on other matters which might come 
before me on the United States Court of Appeals, or, if 1 am 
confirmed, on the United States Supreme Court. Because the 
issue of unfair advertising may come before either the Supreme 
Court of the Court of Appeals, I believe It would be 
Inappropriate for me to discuss these Issues. 

Sincerely, 

Robert H. Bork 


RHB/Jac 





3958 


UNITED STATES COURT OF APPEALS 
OlSTRiCT OF COLUMBIA CIRCUIT 
WASHINGTON O C 20001 


October 5, 1987 


Honorable Joseph R. fliden, Jr. 

Chairman 

Committee on the Judiciary 
United States Senate 
Washington, D.C. 20510 

Dear Mr. Chairman: 

This letter responds to Senator Metzenbaum’s questions 
asking for my views on the purpose and effect of the Second 
Amendment. I have never thought about how the Second Amendment 
should be Interpreted. I have never taught the subject and 
have never decided a case under that amendment. Given these 
facts, it would be Inappropriate for me to try to develop a 
position now without benefit of research, briefing, and 
argument. 

Sincerely, 

/?, L- ■‘v- (f' ^— 

Robert H. Bork 

RHB/Jac 


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